39214 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government). 6. 

Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments—EO 13175 does not apply 

to this rule because it will not have 

tribal implications (i.e., substantial 

direct effects on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes). 7. 

Executive Order 13045: Protection of 

Children from Environmental Health & 

Safety Risks—This rule is not subject to 

EO 13045 because it is not economically 

significant and it is not based on health 

or safety risks. 8. Executive Order 

13211: Actions that Significantly Affect 

Energy Supply, Distribution, or Use—

This rule is not subject to EO 13211 

because it is not a significant regulatory 

action as defined in EO 12866. 9. 

National Technology Transfer and 

Advancement Act—Section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (‘‘NTTAA’’), 

Public Law 104–113, 12(d) (15 U.S.C. 

272 note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA is not 

considering the use of any voluntary 

consensus standards. 

List of Subjects in 40 CFR Part 281 

Environmental protection, 

Administrative practice and procedure, 

Hazardous materials, State program 

approval, Underground storage tanks. 

Authority: This notice is issued under the 

authority of Sections 2002(a), 7004(b), and 

9004 of the Solid Waste Disposal Act as 

amended 42 U.S.C. 6912(a), 6974(b), and 

6991(c). 

Dated: June 5, 2006. 

Bharat Mathur, 

Acting Regional Administrator, Region 5. 

[FR Doc. E6–10866 Filed 7–11–06; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

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

and 483 

[CMS–2257–IFC] 

RIN 0938–AO51 

Medicaid Program; Citizenship 

Documentation Requirements 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Interim Final rule with 

comment period. 

SUMMARY: This interim final rule with 

comment period 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. 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 declaration 

of citizenship. It also gives States 

guidance on the processes that may be 

used to help minimize the 

administrative burden on both States 

and applicants and recipients. 

DATES: Effective Date: July 6, 2006. 

Comment Date: To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m. on 

August 11, 2006. 

ADDRESSES: In commenting, please refer 

to file code CMS–2257–IFC. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (no duplicates, please): 

1. Electronically. You may submit 

electronic comments on specific issues 

in this regulation to http:// 

www.cms.hhs.gov/eRulemaking. Click 

on the link ‘‘Submit electronic 

comments on CMS regulations with an 

open comment period.’’ (Attachments 

should be in Microsoft Word, 

WordPerfect, or Excel; however, we 

prefer Microsoft Word.) 

2. By regular mail. You may mail 

written comments (one original and two 

copies) to the following address ONLY: 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Attention: CMS–2257–

IFC, P.O. Box 8017, Baltimore, MD 

21244–8017. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments (one 

original and two copies) to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2257–IFC, Mail Stop C4–26–05, 

7500 Security Boulevard, Baltimore, MD 

21244–1850. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments (one original 

and two copies) before the close of the 

comment period to one of the following 

addresses. If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786–

7195 in advance to schedule your 

arrival with one of our staff members. 

Room 445–G, Hubert H. Humphrey 

Building, 200 Independence Avenue, 

SW., Washington, DC 20201; or 7500 

Security Boulevard, Baltimore, MD 

21244–1850. 

(Because access to the interior of the 

HHH Building is not readily available to 

persons without Federal Government 

identification, commenters are 

encouraged to leave their comments in 

the CMS drop slots located in the main 

lobby of the building. A stamp-in clock 

is available for persons wishing to retain 

a proof of filing by stamping in and 

retaining an extra copy of the comments 

being filed.) 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

Submission of comments on 

paperwork requirements. You may 

submit comments on this document’s 

paperwork requirements by mailing 

your comments to the addresses 

provided at the end of the ‘‘Collection 

of Information Requirements’’ section in 

this document. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Robert Tomlinson, (410) 786–4463. 

SUPPLEMENTARY INFORMATION: 

Submitting Comments: We welcome 

comments from the public on all issues 

set forth in this rule to assist us in fully 

considering issues and developing 

policies. You can assist us by 

referencing the file code CMS–2257–IFC 

and the specific ‘‘issue identifier’’ that 

precedes the section on which you 

choose to comment. 


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Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 39215 

Inspection of Public Comments: All 

comments received before the close of 

the comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following Web 

site as soon as possible after they have 

been received: http://www.cms.hhs.gov/ 

eRulemaking. Click on the link 

‘‘Electronic Comments on CMS 

Regulations’’ on that Web site to view 

public comments. 

Comments received timely will also 

be available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 8:30 

a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

phone 1–800–743–3951. 

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. 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 were first implemented. 

Individuals who declared they were 

citizens did not have to do anything else 

to support that claim, although some 

States did require documentary 

evidence of this claim. The new 

provision under 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 a declaration of citizenship. Selfattestation 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 creates 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 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 is a one-time activity; 

once a person’s citizenship is 

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. The State need only check 

its databases to verify that the 

individual already established 

citizenship. 

Basic Features of New Provision 

To receive FFP, States must secure 

documentary evidence of U.S. 

citizenship and identity with respect to 

individuals who have declared under 

section 1137(d) of the Act that they are 

citizens or nationals of the United States 

unless an exemption applies. These 

individuals must present documentary 

evidence to establish both citizenship 

and identity. The law provides specific 

examples of acceptable documents and 

gives us authority to add additional 

documents. We explain the types of 

documents that may be used including 

additional documents that may be 

accepted. We establish a hierarchy of 

reliability of citizenship documents and 

specify when a document of lesser 

reliability may be accepted by the State. 

The State makes the decision whether 

documents of a given level of reliability 

are available. 

Implementation Conditions/ 

Considerations 

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 

an exemption, but it does so in a 

manner that is clearly a drafting error. 

This section exempts an ‘‘alien’’ eligible 

for Medicaid and entitled to or enrolled 

in Medicare or eligible for Medicaid by 

virtue of receiving Supplemental 

Security Income (SSI) from the 

requirement to present satisfactory 

documentary evidence of citizenship. 

However, because aliens are not citizens 

and cannot provide documentary 

evidence of citizenship, this exemption, 

if limited to aliens, does not appear to 

have any impact. The context of this 

exemption in the statutory framework 

suggests that the Congress may have 

intended to create an exemption for 

citizens and nationals but accidentally 

used the term ‘‘alien.’’ The DRA did not 

modify section 1137(d)(2) or (3) of the 

Act, which contains the documentation 

and verification requirements for aliens, 

and section 1903(x)(1), which was 

added by the DRA and is the section to 

which the exemption applies, by its 

terms references only citizens and 

nationals, not aliens. 

We believe that in order to give 

meaning to the exemption, it is 

appropriate to treat the reference to 

‘‘alien’’ as a ‘‘scrivener’s error.’’ Courts 

have employed the doctrine of 

correcting a ‘‘scrivener’s error’’ in order 

to correct obvious clerical or 

typographical errors. For example, U.S. 

Nat’l Bank of Or. v. Indep. Ins. Agents 

of Am., Inc., 508 U.S. 439, 462 (1993). 

Courts similarly may reform the 

Congress’s chosen words when the plain 

language would lead to absurd results. 

See Yates v. Hendon, 541 U.S. 1, 17–18 

(2004); United States v. Brown, 333 U.S. 

18, 27 (1948). There are several clear 

scrivener’s errors included in section 

6036 of the DRA in addition to this one, 

including the Congress’s decision to 

cross-reference the non-existent 

‘‘subsection (i)(23),’’ rather than the 

relevant subsection (i)(22). 

While the Congress chose to use 

words that have a logical English 

meaning, those words lead to absurd 

and counter-intuitive results. An 

exemption applying only to ‘‘aliens’’

who declare themselves citizens would 

amount to an absurd result for aliens 

(who, by definition, cannot provide 

documentation of citizenship) and no 

exemption at all for those whom the 

Congress clearly intended to benefit 

with the exemption. Under the absurd 

results doctrine, it appears reasonable 

for CMS to interpret the statute so that 

the exemption under subsection 

1903(x)(2) of the Act applies to 

‘‘individuals’’ rather than ‘‘aliens.’’

To adopt the literal reading of the 

statute could result in Medicare and SSI 

eligibles, a population which are by 

definition either aged, blind, or 


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39216 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 

disabled, and thereby most likely to 

have difficulty obtaining documentation 

of citizenship, being denied the 

availability of an exemption which we 

believe the Congress intended to afford 

them. Accordingly, States will not be 

subject to denial of FFP in their 

Medicaid expenditures for SSI 

recipients who receive Medicaid by 

virtue of receipt of SSI and Medicare 

eligibles based upon failure to 

document citizenship. 

Not all States provide Medicaid to 

individuals who are SSI recipients. In 

those States, the exemption will not 

provide relief to SSI recipients. 

However, the Social Security 

Administration (SSA) maintains a 

database, known as the State Data 

Exchange (SDX) which contains the 

needed information to identify whether 

an individual has already been found to 

be a citizen by the SSA and the States 

have the option to cross match with this 

database to meet these requirements 

without using the hierarchical process 

for obtaining documents discussed in 

the regulation. 

The statute also gives us authority to 

exempt ‘‘aliens’’ (which we construe as 

‘‘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. We are not 

currently exercising this authority. If we 

become aware of an appropriate 

instance to exercise this authority in the 

future or to add additional forms of 

documentation which will be acceptable 

for establishing identity or citizenship, 

we will do so by regulation. 

Title IV–E children receiving 

Medicaid, while not required to declare 

citizenship for IV–E, must have in their 

Medicaid file a declaration of 

citizenship or satisfactory immigration 

status and documentary evidence of the 

citizenship or satisfactory immigration 

status claimed on the declaration. 

Individuals who are receiving benefits 

under a section 1115 demonstration 

project approved under title XI 

authority are also 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) 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 categorically needy 

Medicaid eligibility to a child born to a 

woman who is eligible as categorically 

needy 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 as categorically 

needy for one year so long as the woman 

remains eligible as categorically needy 

and the child is member of the woman’s 

household. Citizenship and identity 

documentation for the child must be 

obtained at the next redetermination of 

eligibility. Citizen children born to nonqualified aliens do not benefit from the 

provisions of section 1902(e)(4) of the 

Act because although the mother may 

have been eligible for and receiving 

Medicaid on the date of the child’s 

birth, the mother would not continue to 

be eligible after the child’s birth. The 

mother is eligible for Medicaid but only 

for treatment of an emergency medical 

condition. A child born in the United 

States to an illegal alien mother, or 5- 

year bar qualified alien mother is not a 

deemed newborn under 1902(e)(4) 

because the mother although eligible on 

the date of birth of the child, would not 

remain eligible. The child, however, 

could be eligible as a poverty level 

child, or 1931 child. In these cases an 

application must be filed for the child 

and the requirements of this regulation 

would apply at the time of application. 

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. These individuals receive 

Medicaid during the ‘‘presumptive’’

period notwithstanding any other 

provision of title XIX, including the 

requirements of section 1903(x) of the 

Act. However, when these individuals 

file an application for Medicaid and 

declare on the application that they are 

citizens or nationals, these regulations 

would apply for periods in which they 

receive services as eligible for Medicaid. 

At the time of application or 

redetermination, the State must give an 

applicant or recipient, who has signed 

a declaration required by section 

1137(d) of the Act and claims to be a 

citizen, a reasonable opportunity to 

present documents establishing U.S. 

citizenship or nationality and identity. 

Individuals who are Medicaid 

recipients, will remain eligible until 

determined ineligible as required by 

Federal regulations at § 435.930. A 

determination terminating eligibility 

may be made after the recipient has 

been given a reasonable opportunity to 

present evidence of citizenship or the 

State determines the individual has not 

made a good faith effort to present 

satisfactory documentary evidence of 

citizenship. By contrast, applicants for 

Medicaid (who are not currently 

receiving Medicaid), should not be 

made eligible until they have presented 

the required evidence. This is no 

different than current policy regarding 

information which an initial applicant 

must submit in order for the State to 

make an eligibility determination. 

The ‘‘reasonable opportunity period’’

should be consistent with the State’s 

administrative requirements such that 

the State does not exceed the time limits 

established in Federal regulations for 

timely determination of eligibility in 

§ 435.911. The regulations permit 

exceptions from the time limits when an 

applicant or recipient in good faith tries 

to present documentation, but is unable 

to do so because the documents are not 

available. In these cases, the State must 

assist the individual in securing 

evidence of citizenship. 

States, at their option, may use 

matches with the SDX (if the State does 

not provide automatic Medicaid 

eligibility to SSI recipients) or vital 

statistics agencies in place of a birth 

certificate to assist applicants or 

recipients to meet the requirements of 

the law. For example, States already 

receive the SDX. Therefore, a match of 

Medicaid applicants or recipients to the 

SDX that shows the individual has 

proved citizenship would satisfy the 

documentation requirement of this 

provision with respect to SSI recipients. 

An SSI recipient’s citizenship status can 

be found in the Alien Indicator Code at 

position 578 on the SDX. States may 

also, at their option, use matches with 

State vital statistics agencies in place of 

a birth certificate to establish 

citizenship. 

We are soliciting comments and 

suggestions for the use of other 

electronic data matches with other 

governmental systems of records that 

contain reliable information about the 

citizenship or identity of individuals. 

We will also permit States to accept 

documentary evidence without 

requiring the applicant or recipient to 

appear in person. However, States may 

accept original documents in person, by 

mail, or by a guardian or authorized 

representative. 

Although States may continue to use 

application procedures that do not 

include an interview with an applicant, 

the State must assure that the 

information it receives 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. Copies or notarized 

copies may not be accepted. 


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Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 39217 

The enactment of section 6036 of the 

DRA does not change any Centers for 

Medicare & Medicaid Services (CMS) 

policies regarding the taking and 

processing of applications for Medicaid 

except the new requirement for 

presentation of documentary evidence 

of citizenship. Before the enactment of 

section 6036 of the DRA, States, 

although not required by law or 

regulation to document citizenship, 

were required to assure that eligibility 

determinations were accurate. 

Therefore, most States would request 

documentation of citizenship only if the 

applicant’s citizenship was believed to 

be questionable. Likewise, the 

regulations at § 435.902, § 435.910(e), 

§ 435.912, § 435.919 and § 435.920 

continue to apply when securing from 

applicants and recipients documentary 

evidence of citizenship and identity. 

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 42 CFR 431.210 

or 431.211 as appropriate. 

Federal Financial Participation (FFP) for 

Administrative Expenditures 

We will provide FFP for State 

expenditures to carry out the provisions 

of section 1903(x) of the Act at the 

match rate for program administration. 

Compliance 

FFP will not be 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. 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. Additionally, we will 

monitor the extent to which the State is 

using primary evidence to establish both 

citizenship and identity and will require 

corrective action to ensure the most 

reliable evidence is routinely being 

obtained. 

We require 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 (SSN) that was 

provided as part of the SSN verification 

specified in § 435.910. In addition, the 

Federal government encourages States 

to use automated capabilities through 

which a State would be able to verify 

citizenship and identity of Medicaid 

applicants. 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 we will make 

available to States necessary 

information in this regard in a future 

State Medicaid Director’s letter. States 

must ensure that all case records within 

this category will be so identified and 

made available to conduct these 

automated matches. We may also 

require States to match files for 

individuals who used first or second 

level documents to verify citizenship as 

well. We may provide further guidance 

to States with respect to actions 

required in a case of a negative match. 

In addition, in the conduct of 

determining or re-determining eligibility 

for Medicaid, State Medicaid agencies 

may uncover instances of suspected 

fraud. In such instances, State agencies 

would refer cases of suspected fraud to 

an appropriate enforcement agency 

pursuant to the requirements of 

§ 455.13(c) and § 455.15(b). We are 

soliciting comments and suggestions on 

whether, as a part of this policy, CMS 

should develop a more formal process of 

sharing the information obtained by 

States from the checks performed 

through the existing and any future 

automated capabilities that may indicate 

potential fraud. HHS recognizes that in 

cases where the appropriate 

enforcement agency is a Federal entity, 

the Privacy Act of 1974 applies to 

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 

[If you choose to comment on issues 

in this section, please include the 

caption ‘‘Provisions of the Interim Final 

Rule with Comment Period’’ at the 

beginning of your comments.] 

We are amending 42 CFR chapter IV 

as follows: 

We are amending § 435.406 and 

§ 436.406 to require that States obtain a 

Declaration signed under penalty of 

perjury from every applicant for 

Medicaid that the applicant is a citizen 

or national of the United States or an 

alien in a satisfactory immigration 

status, and require the individual to 

provide documentary evidence to verify 

the declaration. The types and forms of 

acceptable documentation of citizenship 

are specified in § 435.407 and § 436.407. 

For purposes of this regulation the term 

‘‘citizenship’’ includes status as a 

‘‘national of the United States.’’ 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 Department of Homeland 

Security) using the Systematic Alien 

Verification for Entitlements (SAVE). 

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 are also amending § 435.406 and 

§ 436.406 to define ‘‘Satisfactory 

immigration status as a Qualified Alien’’

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

also amending § 435.406 and § 436.406 

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

well as subparagraphs (3) and (4) of 

paragraph (a). These provisions have 

ceased to have any force or effect 

because the eligibility status provided to 

individuals who received Lawful 

Temporary Residence under the 


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39218 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 

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 amnesty 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 42 U.S.C. 1641 are not 

eligible for any Federal public benefit. 

That term includes Medicaid. 

We are adding a new § 435.407 and a 

new § 436.407 describing the documents 

and processes States may use to 

document an applicant’s or recipient’s 

declaration that the individual is a 

citizen of the United States. The 

documents include all the documents 

listed in section 6036 of the DRA plus 

additional documents. We also note that 

the State Medicaid agency 

determinations of citizenship are not 

binding on other Federal or State 

agencies for any other purposes. We 

have employed a hierarchy of reliability 

when securing documentary evidence 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 evidence that provides identifying 

information that relates to the person 

named on the document. 

We have divided evidence of 

citizenship into groups based on the 

respective reliability of the evidence. 

The first group of documents is 

described in section 6036 of the DRA 

and is specified in § 435.407(a) and 

§ 436.407(a) as primary evidence of 

citizenship and identity. If an 

individual presents documents from 

this section, no other information would 

be 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 obtain primary evidence of 

citizenship and identity before using 

secondary evidence. We also permit 

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. While in States which provide 

Medicaid eligibility to individuals by 

virtue of receipt of SSI, these data will 

not be relevant, the other States may use 

these data since SSA establishes the 

citizenship, or immigration status and 

identity of every applicant as part of its 

routine administrative processes. 

Secondary Evidence of Citizenship 

Secondary evidence of citizenship is 

documentary evidence of satisfactory 

reliability that is used when primary 

evidence of citizenship is not available. 

In addition, a second document 

establishing identity must also be 

presented. See § 435.407(e) and 

§ 436.407(e). Available evidence is 

evidence that exists and can be obtained 

within a State’s reasonable opportunity 

period. The State must accept any of the 

documents listed in paragraph (b) if the 

document meets the listed criteria and 

there is nothing indicating the person is 

not a U.S. citizen. 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. However, 

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). 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. An amended birth record 

document that is amended 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 listed for each 

of the territories. 

The following will establish U.S. 

citizenship for collectively naturalized 

individuals: 

Puerto Rico: 

• 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 

• 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. 

U.S. Virgin Islands: 

• 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 

• 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 

• 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. 

Northern Mariana Islands (NMI) 

(formerly part of the Trust Territory of 

the Pacific Islands (TTPI)): 

• 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 

• 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 

• 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). 

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. 

However, individuals born to foreign 

diplomats residing in one of the States, 

the District of Columbia, Puerto Rico, 

Guam, or the Virgin Islands are not 

citizens of the United States. 

Third Level of Evidence of Citizenship 

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. Third level 

evidence may be used only when 

primary evidence cannot be obtained 


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Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 39219 

within the State’s reasonable 

opportunity period (see reasonable 

opportunity discussion below), 

secondary evidence does not exist or 

cannot be obtained, and the applicant or 

recipient alleges being born in the U.S. 

In addition, a second document 

establishing identity must be presented 

as described in paragraph (e), ‘‘Evidence 

of identity.’’

A State must accept any of the 

documents listed in paragraph (c) as 

third level evidence of U.S. citizenship 

if the document meets the listed criteria, 

the applicant alleges birth in the U.S., 

and there is nothing indicating the 

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

lost U.S. citizenship). 

Third level evidence is generally a 

non-government document established 

for a reason other than to establish U.S. 

citizenship and showing a U.S. place of 

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

application must agree. 

Fourth Level of Evidence of Citizenship 

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 

evidence is not available, both 

secondary and third level evidence do 

not exist or cannot be obtained within 

the State’s reasonable opportunity 

period, and the applicant alleges a U.S. 

place of birth. 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). Fourth level 

evidence consists of documents 

established for a reason other than to 

establish U.S. citizenship and showing 

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

birth on the document and the 

application must agree. 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. 

Affidavits should ONLY be used in 

rare circumstances. 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 does not exist or 

cannot be readily obtained, 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 does not exist or 

cannot be obtained. The affidavits must 

be signed under penalty of perjury. 

We are adding 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), 

will meet the statutory requirements of 

section 6036 of the DRA. 

We are adding 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 

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. 

We are also adding a new paragraph 

(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 are adding a paragraph (h) that 

describes documentary evidence. We 

specify 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 data base. The copies 

maintained in the case file may be 

electronic records of matches, or other 

electronic methods of storing 

information. 

Moreover, we specify 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 specify in paragraph (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 (j), we describe 

the reasonable opportunity to submit 

satisfactory documentary evidence of 

citizenship and identity. We specify 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 also solicit comments and 

suggestions for 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. Suggestions should include 

an explanation as to the reliability of 

such additional documents, including 

any limits on the document’s reliability 

and methods for assuring reliability. We 

are also soliciting comments as to 

whether the number of documents 

accepted for proof of citizenship and 


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39220 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 

identity should be limited. In particular, 

in light of the exception provided for 

citizens and nationals receiving SSI 

where receipt of SSI results in Medicaid 

eligibility, and for individuals entitled 

to or enrolled in Medicare, we are 

soliciting comments as to whether 

individuals would have difficulty 

proving citizenship and identity if only 

primary or secondary level documents 

were permitted. 

We are removing § 435.408 and 

§ 436.408 because the immigration 

status described as permanently 

residing in the United States under 

color of law no longer has any 

effectiveness because of the enactment 

in 1996 of the Personal Responsibility 

and Work Opportunity Reconciliation 

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. The 

Conference Report accompanying Public 

Law 104–193 declares on page 383, 

‘‘Persons residing under color of law 

shall be considered to be aliens 

unlawfully present in the United States 

***’’

We are redesignating § 435.1008 

through § 435.1011 as § 435.1009 

through § 435.1012, respectively. We are 

redesignating § 436.1004 and § 436.1005 

as § 436.1005 and § 436.1006, 

respectively. We are correcting cross 

references in title 42 to the redesignated 

sections. We are adding a reference in 

§ 435.1002(a) to new § 435.1008 

conditioning FFP on State compliance 

with the requirements of section 1903(x) 

of the Act and these regulations. We are 

adding a new § 435.1008 and a new 

§ 436.1004 to provide that FFP will be 

available if the State complies with the 

requirements of section 1903(x) of the 

Act and § 435.407 and § 436.407 

regarding obtaining satisfactory 

documentary evidence of citizenship 

from individuals who have declared, 

under section 1137(d) of the Act, that 

the individual is a citizen of the United 

States unless the individual is subject to 

a statutory exemption from this 

requirement. 

III. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995, we are required to provide 30- 

day notice in the Federal Register and 

solicit public comment when a 

collection of information requirement is 

submitted to the Office of Management 

and Budget (OMB) for review and 

approval. In order to fairly evaluate 

whether an information collection 

should be approved by OMB, section 

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

Reduction Act of 1995 requires that we 

solicit comment on the following issues: 

• The need for the information 

collection and its usefulness in carrying 

out the proper functions of our agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 

We are soliciting public comment on 

each of these issues for the following 

sections of this document that contain 

information collection requirements 

(ICRs). 

Citizenship and Alienage (§ 435.406) 

Section 435.406 requires States to 

obtain a declaration signed under 

penalty of perjury from every applicant 

for Medicaid that the applicant is a 

citizen or national of the United States 

or an alien in a satisfactory immigration 

status, and require the individual to 

provide acceptable documentary 

evidence to verify the declaration. 

(§ 435.407 describes the types of 

acceptable documentary evidence of 

citizenship.) 

An individual should ordinarily be 

required to submit evidence of 

citizenship once unless the State 

receives evidence that evidence 

previously relied upon may be 

incorrect. States must maintain copies 

of that evidence in the case file or 

database. 

We estimate it would take an 

individual 10 minutes to acquire and 

provide to the State acceptable 

documentary evidence and to verify the 

declaration. 

We estimate it will take each State 5 

minutes to obtain acceptable 

documentation, verify citizenship and 

maintain current records on each 

individual. 

Citizenship and Alienage (§ 436.406) 

Sections 436.406 and 436.407 apply 

to Guam, Puerto Rico, and the Virgin 

Islands and are the corresponding 

sections to the regulations at § 435.406 

and § 435.407. 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 estimate it would take an 

individual 10 minutes to acquire and 

provide to the State acceptable 

documentary evidence and to verify the 

declaration. 

We estimate it will take each State 5 

minutes to obtain acceptable 

documentation, verify citizenship and 

maintain current records on each 

individual. 

We have submitted a copy of this 

interim final rule with comment period 

to OMB for its review of the information 

collection requirements. A notice will 

be published in the Federal Register 

when we receive approval. 

If you comment on any of these 

information collection and record 

keeping requirements, please mail 

copies directly to the following: 

Centers for Medicare and Medicaid 

Services, Office of Strategic 

Operations and Regulatory Affairs, 

Regulations Development Group, 

Attn: Melissa Musotto, CMS–2257–

IFC, 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 T. Astrich, 

CMS Desk Officer, CMS–2257–IFC, 

katherine_T._astrich@omb.eop.gov. 

Fax (202) 395–6974. 

IV. Response to Comments 

Because of the large number of public 

comments we normally receive on 

Federal Register documents, we are not 

able to acknowledge or respond to them 

individually. We will consider all 

comments we receive by the date and 

time specified in the DATES section of 

this preamble, and, when we proceed 

with a subsequent document, we will 

respond to the comments in the 

preamble to that document. 

V. Waiver of Notice of Proposed 

Rulemaking and the 30-Day Delay in 

the Effective Date 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register and invite public comment on 

the proposed rule in accordance with 

the Administrative Procedure Act (APA) 

as codified in 5 U.S.C. 553(b). The 

notice of proposed rulemaking includes 

a reference to the legal authority under 

which the rule is proposed, and the 

terms and substances of the proposed 

rule or a description of the subjects and 

issues involved. This procedure can be 

waived, however, if an agency finds 

good cause that a notice-and-comment 

procedure is impracticable, 

unnecessary, or contrary to the public 

interest and incorporates a statement of 

the finding and its reasons in the rule 

issued. 

The regulation is required as a result 

of the enactment of the DRA, section 


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Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 39221 

6036. The statutory effective date is July 

1, 2006. Section 1903(x)(3)(C)(v) of the 

Act allows for the Secretary to identify 

additional documentary evidence of 

citizenship beyond that contained in 

section 1903(x). States would not be 

required to accept such other forms of 

documentation beyond that contained 

in the law without regulation. Because 

delaying the implementation of this 

regulation to permit notice and 

comment could result in the most frail 

and vulnerable citizens, including the 

very elderly in nursing homes and the 

chronically mentally ill, being unable to 

demonstrate their citizenship and losing 

access to Medicaid, we find that good 

cause exists to waive this requirement. 

The attendant delay would be contrary 

to public interest. 

Publication of an interim final rule 

with comment period will provide 

States with the strongest legal basis for 

accepting alternative forms of 

documentary evidence showing that a 

Medicaid applicant or recipient is a 

citizen of the United States. 

In addition, we ordinarily provide a 

30-day delay in the effective date of the 

provisions of an interim final rule with 

comment period. The APA as codified 

in 5 U.S.C. 553(d) ordinarily requires a 

30-day delay in the effective date of 

final rules after the date of their 

publication in the Federal Register. 

This 30-day delay in effective date can 

be waived, however, if an agency finds 

for good cause 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. 

The impending statutory 

implementation date of July 1, 2006 

prevents timely publication of guidance 

to permit documents in addition to 

those listed in section 1903(x) of the Act 

as added by section 6036 the Deficit 

Reduction Act of 2005 (Pub. L. 109–171) 

to be used when any of the statutory 

documents is not available. It is 

necessary for the Secretary to identify 

additional documentary evidence of 

citizenship beyond that contained in 

section 6036 in order to prevent 

Medicaid eligible citizens lacking the 

documents identified in statute from 

being terminated. Without prompt 

publication of a rule and without a July 

1, 2006 implementation date, States will 

not have authority to employ additional 

documentary evidence beyond that 

contained in the law. Such additional 

documentary evidence that the 

Secretary is authorized to permit States 

to use is necessary to prevent loss of 

Medicaid eligibility when a Medicaid 

eligible individual lacks one of the 

documents listed in statute. Because 

delaying the effective date of this 

regulation by 30 days could result in the 

most frail and vulnerable citizens, 

including the very elderly in nursing 

homes and the chronically mentally ill, 

being unable to demonstrate their 

citizenship and losing access to 

Medicaid, we find that good cause exists 

to waive this requirement. The 

attendant delay would be contrary to 

public interest. 

VI. Regulatory Impact Statement 

[If you choose to comment on issues 

in this section, please include the 

caption ‘‘Regulatory Impact Statement’’

at the beginning of your comments.] 

We have 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 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 

would eventually provide proof of that 

fact, and that the savings would come 

from those who are truly in the country 

illegally. Consequently, the level of 

Federal savings from this provision is 

expected to be under $70 million, and 

State savings under $50 million, per 

year over the next 5 years. Therefore, 

this rule does not reach the economic 

threshold and thus is not considered a 

major rule. 

The RFA requires agencies to analyze 

options for regulatory relief of small 

businesses. 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 million to $29 million in any 1 

year. Individuals and States are not 

included in the definition of a small 

entity. We are not preparing an analysis 

for the RFA because we have 

determined that this rule will not have 

a significant economic impact on a 

substantial number of small entities. 

In addition, section 1102(b) of the Act 

requires 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 Core-Based Statistical Area and has 

fewer than 100 beds. We are not 

preparing an analysis for section 1102(b) 

of the Act because we have determined 

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 would be exempt. In 

addition, for States that provide 

Medicaid eligibility for all SSI 

recipients, there will be no additional 

burden. For the other States, if they 

verify citizenship and identity of 

individuals receiving SSI through the 

existing data match with SSA, we 

anticipate little or no added burden 

with respect to those individuals. In the 

future, when additional data matches 

are available the burden would 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 


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39222 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 

documents related to income and 

identification; therefore, we do not 

anticipate that these added 

requirements will overburden the 

eligibility process. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was reviewed by the Office of 

Management and Budget. 

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. 

■ For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services amends 42 CFR 

chapter IV as set forth below: 

PART 435—ELIGIBILITY IN THE 

STATES, DISTRICT OF COLUMBIA, 

THE NORTHERN MARIANA ISLANDS, 

AND AMERICAN SAMOA 

■ 1. The authority citation for part 435 

continues to read as follows: 

Authority: Section 1102 of the Social 

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

■ 2. In § 435.403, in paragraph (b), 

‘‘§ 435.1009 of this chapter’’ is revised 

to read § 435.1010.’’

■ 3. Section 435.406 is amended by—

■ A. Revising paragraph (a)(1). 

■ B. Revising paragraph (a)(2). 

■ C. Removing paragraphs (a)(3) and 

(a)(4). 

■ D. Removing paragraph (b). 

■ E. Redesignating paragraph (c) as 

paragraph (b). 

■ F. Removing paragraph (d). 

The revisions read as follows: 

§ 435.406 Citizenship and alienage. 

(a) * * * 

(1) Citizens: (i) Under a declaration 

required by section 1137(d) of the Act 

that the individual is a citizen or 

national of the United States; and 

(ii) The individual has provided 

satisfactory documentary evidence of 

citizenship or national status, as 

described in § 435.407. 

(iii) An individual for purposes of the 

citizenship requirement is a Medicaid 

applicant or recipient or an individual 

receiving any services under a section 

1115 demonstration for which States 

receive Federal financial participation 

in their expenditures as though they 

were medical assistance, for example, 

family planning demonstrations or 

Medicaid demonstrations. 

(iv) Individuals must declare their 

citizenship and the State must 

document the individual’s citizenship 

in the individual’s eligibility file on 

initial applications and initial 

redeterminations effective July 1, 2006. 

(2) Qualified aliens as described in 

section 431 of the Personal 

Responsibility and Work Opportunity 

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

1641) 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. 

* * * * * 

■ 4. A new § 435.407 is added to read 

as follows: 

§ 435.407 Types of acceptable 

documentary evidence of citizenship. 

(a) Primary evidence of citizenship 

and identity. The following evidence 

must be accepted as satisfactory 

documentary evidence of both identity 

and citizenship: 

(1) A U.S. passport. The Department 

of State issues this. A U.S. passport does 

not have to be currently valid to be 

accepted as evidence of U.S. 

citizenship, as long as it was originally 

issued without limitation. Note: 

Spouses and children were sometimes 

included on one passport through 1980. 

U.S. passports issued after 1980 show 

only one person. Consequently, the 

citizenship and identity of the included 

person can be established when one of 

these passports is presented. Exception: 

Do not accept any passport as evidence 

of U.S. citizenship when it was issued 

with a limitation. However, such a 

passport may be used as proof of 

identity. 

(2) A Certificate of Naturalization 

(DHS Forms N–550 or N–570.) 

Department of Homeland Security 

issues for naturalization. 

(3) A Certificate of U.S. Citizenship 

(DHS Forms N–560 or N–561.) 

Department of Homeland Security 

issues certificates of citizenship to 

individuals who derive citizenship 

through a parent. 

(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. The State 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.); or 

(5) At the State’s option, for States 

which do not provide Medicaid to 

individuals by virtue of their receiving 

SSI, a State match with the State Data 

Exchange for Supplementary Security 

Income recipients. The statute gives the 

Secretary authority to establish other 

acceptable forms of citizenship 

documentation. SSA documents 

citizenship and identity for SSI 

applicants and recipients and includes 

such information in the database 

provided to the States. 

(b) Secondary evidence of citizenship. 

If primary evidence from the list in 

paragraph (a) of this section is 

unavailable, an applicant or recipient 

should provide satisfactory 

documentary evidence of citizenship 

from the list specified in this section to 

establish citizenship and satisfactory 

documentary evidence from paragraph 

(e) of this section to establish identity, 

in accordance with the rules specified 

in this section. 

(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 


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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 issued before the person was 

5 years of age. An amended birth record 

document that is amended after 5 years 

of age is considered fourth level 

evidence of citizenship. Note: If the 

document shows the individual was 

born in Puerto Rico, Guam, 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 the 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 resident 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 prior to 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. 

(2) A Certification of Report of Birth 

(DS–1350). The Department of State 

issues a DS–1350 to U.S. citizens in the 

U.S. who were born outside the U.S. 

and acquired U.S. citizenship at birth, 

based on the information shown on the 

FS–240. When the birth was recorded as 

a Consular Report of Birth (FS–240), 

certified copies of the Certification of 

Report of Birth Abroad (DS–1350) can 

be issued by the Department of State in 

Washington, DC. The DS–1350 contains 

the same information as that on the 

current version of Consular Report of 

Birth FS–240. The DS–1350 is not 

issued outside the U.S. 

(3) A Report of Birth Abroad of a U.S. 

Citizen (Form FS–240). The Department 

of State consular office prepares and 

issues this. A Consular Report of Birth 

can be prepared only at an American 

consular office overseas while the child 

is under the age of 18. Children born 

outside the U.S. to U.S. military 

personnel usually have one of these. 

(4) A Certification of birth issued by 

the Department of State (Form FS–545 

or DS–1350). Before November 1, 1990, 

Department of State consulates also 

issued Form FS–545 along with the 

prior version of the FS–240. In 1990, 

U.S. consulates ceased to issue Form 

FS–545. Treat an FS–545 the same as 

the DS–1350. 

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

was issued as Form I–197 until the 

1980’s 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. 

Note that section 1903(x) of the Act 

incorrectly refers to the same document 

as an I–97.) 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. 

(6) A Northern Mariana Identification 

Card (I–873). (Issued by the DHS to a 

collectively naturalized citizen of the 

United States who was born in the 

Northern Mariana Islands before 

November 4, 1986.) The former 

Immigration and Naturalization Service 

(INS) issued the I–873 to a collectively 

naturalized citizen of the U.S. who was 

born in the NMI before November 4, 

1986. The card is no longer issued, but 

those previously issued are still valid. 

(7) An American Indian Card (I–872) 

issued by the Department of Homeland 

Security with the classification code 

‘‘KIC.’’ (Issued by DHS to identify U.S. 

citizen members of the Texas Band of 

Kickapoos living near the United States/ 

Mexican border.) DHS issues this card 

to identify a member of the Texas Band 

of Kickapoos living near the U.S./ 

Mexican border. A classification code 

‘‘KIC’’ and a statement on the back 

denote U.S. citizenship. 

(8) A final adoption decree showing 

the child’s name and U.S. place of birth. 

The adoption decree must show the 

child’s name and U.S. place of birth. In 

situations where an adoption is not 

finalized and the State in which the 

child was born will not release a birth 

certificate prior to final adoption, a 

statement from a State approved 

adoption agency that shows the child’s 

name and U.S. place of birth is 

acceptable. The adoption agency must 

state in the certification that the source 

of the place of birth information is an 

original birth certificate. 

(9) Evidence of U.S. Civil Service 

employment before June 1, 1976. The 

document must show employment by 

the U.S. government before June 1, 

1976. Individuals employed by the U.S. 

Civil Service prior to June 1, 1976 had 

to be U.S. citizens. 

(10) U.S. Military Record showing a 

U.S. place of birth. The document must 

show a U.S. place of birth (for example 

a DD–214 or similar official document 

showing a U.S. place of birth.) 

(c) Third level evidence of citizenship. 

Third level evidence of U.S. citizenship 

is documentary evidence of satisfactory 

reliability that is used when neither 

primary nor secondary evidence is 

available. Third level evidence may be 

used only when primary evidence 

cannot be obtained within the State’s 

reasonable opportunity period, 

secondary evidence does not exist or 

cannot be obtained, and 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 


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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. Note: For 

children under 16 the document must 

have been created near the time of birth 

or 5 years before the date of application. 

(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 and that 

indicates a U.S. place of birth. 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. 

(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 

evidence is unavailable, both secondary 

and third level evidence do not exist or 

cannot be obtained within the State’s 

reasonable opportunity period, and the 

applicant alleges a U.S. place of birth. 

In addition, a second document 

establishing identity must be presented 

as described in paragraph (e) of this 

section. 

(1) Federal or State census record 

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

of birth. (Generally for persons born 

1900 through 1950.) The census record 

must also show the applicant’s age. 

Note: Census records from 1900 through 

1950 contain certain citizenship 

information. To secure this information 

the applicant, recipient or State should 

complete a Form BC–600, Application 

for Search of Census Records for Proof 

of Age. Add in the remarks portion 

‘‘U.S. citizenship data requested.’’ Also 

add that the purpose is for Medicaid 

eligibility. This form requires a fee. 

(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. This 

document must be one of the following 

and show a U.S. place of birth: 

(i) Seneca Indian tribal census record. 

(ii) Bureau of Indian Affairs tribal 

census records of the Navajo Indians. 

(iii) U.S. State Vital Statistics official 

notification of birth registration. 

(iv) An amended U.S. public birth 

record that is amended 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. 

(3) Institutional admission papers 

from a nursing facility, skilled care 

facility or other institution. 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. Note: For children under 16 

the document must have been created 

near the time of birth or 5 years before 

the date of application. 

(5) Written affidavit. Affidavits should 

ONLY be used in rare circumstances. If 

the documentation requirement needs to 

be met through affidavits, the following 

rules apply: 

(i) There must be at least two 

affidavits by two 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). 

(ii) At least one of the individuals 

making the affidavit cannot be related to 

the applicant or recipient. Neither of the 

two individuals can be the applicant or 

recipient. 

(iii) In order for the affidavit to be 

acceptable the persons making them 

must be able to provide proof of their 

own citizenship and identity. 

(iv) If the individual(s) making the 

affidavit has (have) information which 

explains why documentary evidence 

establishing the applicant’s claim or 

citizenship does not exist or cannot be 

readily obtained, the affidavit should 

contain this information as well. 

(v) The State must obtain a separate 

affidavit from the applicant/recipient or 

other knowledgeable individual 

(guardian or representative) explaining 

why the evidence does not exist or 

cannot be obtained. 

(vi) The affidavits must be signed 

under penalty of perjury. 

(e) Evidence of identity. The following 

documents may be accepted as proof of 

identity and must accompany a 

document establishing citizenship from 

the groups of documentary evidence of 

citizenship in the groups in paragraphs 

(b) through (d) of this section. 

(1) A driver’s license issued by a State 

or Territory either with a photograph of 

the individual or other identifying 

information such as name, age, sex, 

race, height, weight, or eye color. 

(2) School identification card with a 

photograph of the individual. 

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

(4) Identification card issued by the 

Federal, State, or local government with 

the same information included on 

driver’s licenses. 

(5) Military dependent’s identification 

card. 

(6) Native American Tribal document. 

(7) U.S. Coast Guard Merchant 

Mariner card. 

(8) 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) Native American Tribal 

document. 

(vii) U.S. Coast Guard Merchant 

Mariner card. 

Note to paragraph (e)(8): 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. 

(9) Certificate of Degree of Indian 

Blood, or other U.S. 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. 

(10) At State option, a State may use 

a cross match with a Federal or State 

governmental, public assistance, law 

enforcement or corrections agency’s 

data system to establish identity if the 

agency establishes and certifies true 

identity of individuals. Such agencies 

may include food stamps, child support, 

corrections, including juvenile 

detention, motor vehicle, or child 

protective services. The State Medicaid 

Agency is still responsible for assuring 

the accuracy of the identity 

determination. 

(f) Special identity rules for children. 

For children under 16, school records 


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may include nursery or daycare records. 

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 or 

guardian stating the date and place of 

the birth of the child and cannot be used 

if an affidavit for citizenship was 

provided. 

(g) Special populations needing 

assistance. States must assist 

individuals to secure satisfactory 

documentary evidence of citizenship 

when because of incapacity of mind or 

body the individual would be unable to 

comply with the requirement to present 

satisfactory documentary evidence of 

citizenship in a timely manner and the 

individual lacks a representative to 

assist him or her. 

(h) Documentary evidence. 

(1) All documents must be either 

originals or copies certified by the 

issuing agency. Copies or notarized 

copies may 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. 

(i) Record retention. The State must 

retain documents in accordance with 45 

CFR 74.53. 

(j) Reasonable opportunity to present 

satisfactory documentary evidence of 

citizenship. States must give an 

applicant or recipient a reasonable 

opportunity to submit satisfactory 

documentary evidence of citizenship 

before taking action affecting the 

individual’s eligibility for Medicaid. 

The time States give for submitting 

documentation of citizenship should be 

consistent with the time allowed to 

submit documentation to establish other 

facets of eligibility for which 

documentation is requested. (See 

§ 435.930 and § 435.911.) 

§ 435.408 [Removed] 

■ 5. Section 435.408 is removed. 

■ 6. Section 435.1002 is amended by 

revising paragraph (a) to read as follows: 

§ 435.1002 FFP for services. 

(a) Except for the limitations and 

conditions specified in § 435.1007, 

§35.1008, § 435.1009, and § 438.814 of 

this chapter, FFP is available in 

expenditures for Medicaid services for 

all recipients whose coverage is 

required or allowed under this part. 

* * * * * 

§ 435.1008–§ 435.1011 [Redesignated] 

■ 7. Sections 435.1008 through 

435.1011 are redesignated as § 435.1009 

through § 435.1012, respectively. Newly 

redesignated § 435.1011 and § 435.1012 

are under the undesignated heading 

‘‘Requirements for State Supplements.’’

■ 8. A new § 435.1008 is added to read 

as follows: 

§ 435.1008 FFP in expenditures for 

medical assistance for individuals who 

have declared United States citizenship or 

nationality under section 1137(d) of the Act 

and with respect to whom the State has not 

documented citizenship and identity. 

FFP will not be available to a State 

with respect to expenditures for medical 

assistance furnished to individuals 

unless the State has obtained 

satisfactory documentary evidence of 

citizenship or national status, as 

described in § 435.407 that complies 

with the requirements of section 1903(x) 

of the Act. This requirement does not 

apply with respect to individuals 

declaring themselves to be citizens or 

nationals who are eligible for medical 

assistance and who are either entitled to 

benefits or enrolled in any parts of the 

Medicare program under title XVIII of 

the Social Security Act, or on the basis 

of receiving supplemental security 

income benefits under title XVI of the 

Act. 

■ 9. In newly redesignated § 435.1009, 

in paragraph (a)(1), ‘‘§ 435.1009’’ is 

revised to read ‘‘§ 435.1010.’’

PART 436—ELIGIBILITY IN GUAM, 

PUERTO RICO, AND THE VIRGIN 

ISLANDS 

■ 10. The authority citation for part 436 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

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

§ 436.406 [Amended] 

■ 11. In § 436.403, paragraph (b), 

‘‘§ 435.1009 of this chapter’’ is revised 

to read ‘‘§ 435.1010 of this chapter.’’

■ 12. Section 436.406 is amended by—

■ A. Revising paragraph (a)(1). 

■ B. Revising paragraph (a)(2). 

■ C. Removing paragraphs (a)(3) and 

(a)(4). 

■ D. Removing paragraph (b). 

■ E. Redesignating paragraph (c) as 

paragraph (b). 

■ F. Removing paragraph (d). 

The revisions read as follows: 

§ 436.406 Citizenship and alienage. 

(a) * * * 

(1) Citizens: (i) Under a declaration 

required by section 1137(d) of the Act 

that the individual is a citizen or 

national of the United States; and 

(ii) The individual has provided 

satisfactory documentary evidence of 

citizenship or national status, as 

described in § 435.407. 

(iii) An individual for purposes of the 

citizenship requirement is a Medicaid 

applicant or recipient or an individual 

receiving any services under a section 

1115 demonstration for which States 

receive Federal financial participation 


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39226 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 

in their expenditures as though they 

were medical assistance, for example, 

family planning demonstrations or 

Medicaid demonstrations. 

(iv) Individuals must declare their 

citizenship and the State must 

document an individual’s eligibility file 

on initial applications and initial 

redeterminations effective July 1, 2006. 

(2) Qualified aliens as described in 

section 431 of the Personal 

Responsibility and Work Opportunity 

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

1641) 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. 

* * * * * 

■ 13. A new § 436.407 is added to read 

as follows: 

§ 436.407 Types of acceptable 

documentary evidence of citizenship. 

(a) Primary evidence of citizenship 

and identity. The following evidence 

must be accepted as satisfactory 

documentary evidence of both identity 

and citizenship: 

(1) A U.S. passport. The Department 

of State issues this. A U.S. passport does 

not have to be currently valid to be 

accepted as evidence of U.S. 

citizenship, as long as it was originally 

issued without limitation. Note: 

Spouses and children were sometimes 

included on one passport through 1980. 

U.S. passports issued after 1980 show 

only one person. Consequently, the 

citizenship and identity of the included 

person can be established when one of 

these passports is presented. Exception: 

Do not accept any passport as evidence 

of U.S. citizenship when it was issued 

with a limitation. However, such a 

passport may be used as proof of 

identity. 

(2) A Certificate of Naturalization 

(DHS Forms N–550 or N–570.) 

Department of Homeland Security 

issues for naturalization. 

(3) A Certificate of U.S. Citizenship 

(DHS Forms N–560 or N–561.) 

Department of Homeland Security 

issues certificates of citizenship to 

individuals who derive citizenship 

through a parent. 

(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.); or 

(b) Secondary evidence of citizenship. 

If primary evidence from the list in 

paragraph (a) of this section is 

unavailable, an applicant or recipient 

should provide satisfactory 

documentary evidence of citizenship 

from the list specified in this section to 

establish citizenship and satisfactory 

documentary evidence from paragraph 

(e) of this section to establish identity, 

in accordance with the rules specified 

in this section. 

(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 issued before the person was 

5 years of age. An amended birth record 

document that is amended 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 resident 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 prior to 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. 

(2) A Certification of Report of Birth 

(DS–1350). The Department of State 

issues a DS–1350 to U.S. citizens in the 

U.S. who were born outside the U.S. 

and acquired U.S. citizenship at birth, 

based on the information shown on the 

FS–240. When the birth was recorded as 

a Consular Report of Birth (FS–240), 

certified copies of the Certification of 

Report of Birth Abroad (DS–1350) can 

be issued by the Department of State in 

Washington, DC. The DS–1350 contains 

the same information as that on the 

current version of Consular Report of 

Birth FS–240. The DS–1350 is not 

issued outside the U.S. 

(3) A Report of Birth Abroad of a U.S. 

Citizen (Form FS–240). The Department 

of State consular office prepares and 

issues this. A Consular Report of Birth 

can be prepared only at an American 


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Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 39227 

consular office overseas while the child 

is under the age of 18. Children born 

outside the U.S. to U.S. military 

personnel usually have one of these. 

(4) A Certification of birth issued by 

the Department of State (Form FS–545 

or DS–1350). Before November 1, 1990, 

Department of State consulates also 

issued Form FS–545 along with the 

prior version of the FS–240. In 1990, 

U.S. consulates ceased to issue Form 

FS–545. Treat an FS–545 the same as 

the DS–1350. 

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

was issued as Form I–197 until the 

1980’s 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. 

Note that section 1903(x) of the Act 

incorrectly refers to the same document 

as an I–97.) 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. 

(6) A Northern Mariana Identification 

Card (I–873). (Issued by the DHS to a 

collectively naturalized citizen of the 

United States who was born in the 

Northern Mariana Islands before 

November 4, 1986.) The former 

Immigration and Naturalization Service 

(INS) issued the I–873 to a collectively 

naturalized citizen of the U.S. who was 

born in the NMI before November 4, 

1986. The card is no longer issued, but 

those previously issued are still valid. 

(7) An American Indian Card (I–872) 

issued by the Department of Homeland 

Security with the classification code 

‘‘KIC.’’ (Issued by DHS to identify U.S. 

citizen members of the Texas Band of 

Kickapoos living near the United States/ 

Mexican border.) DHS issues this card 

to identify a member of the Texas Band 

of Kickapoos living near the U.S./ 

Mexican border. A classification code 

‘‘KIC’’ and a statement on the back 

denote U.S. citizenship 

(8) A final adoption decree showing 

the child’s name and U.S. place of birth. 

The adoption decree must show the 

child’s name and U.S. place of birth. In 

situations where an adoption is not 

finalized and the State in which the 

child was born will not release a birth 

certificate prior to final adoption, a 

statement from a State approved 

adoption agency that shows the child’s 

name and U.S. place of birth is 

acceptable. The adoption agency must 

state in the certification that the source 

of the place of birth information is an 

original birth certificate. 

(9) Evidence of U.S. Civil Service 

employment before June 1, 1976. The 

document must show employment by 

the U.S. government before June 1, 

1976. Individuals employed by the U.S. 

Civil Service prior to June 1, 1976 had 

to be U.S. citizens. 

(10) U.S. Military Record showing a 

U.S. place of birth. T he document must 

show a U.S. place of birth (for example 

a DD–214 or similar official document 

showing a U.S. place of birth.) 

(c) Third level evidence of citizenship. 

Third level evidence of U.S. citizenship 

is documentary evidence of satisfactory 

reliability that is used when neither 

primary nor secondary evidence is 

available. Third level evidence may be 

used only when primary evidence 

cannot be obtained within the State’s 

reasonable opportunity period, 

secondary evidence does not exist or 

cannot be obtained, and 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. 

Note: For children under 16 the 

document must have been created near 

the time of birth or 5 years before the 

date of application. 

(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. 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. 

(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 

evidence is unavailable, both secondary 

and third level evidence do not exist or 

cannot be obtained within the State’s 

reasonable opportunity period, and the 

applicant alleges a U.S. place of birth. 

In addition, a second document 

establishing identity must be presented 

as described in paragraph (e) of this 

section. 

(1) Federal or State census record 

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

of birth. (Generally for persons born 

1900 through 1950.) The census record 

must also show the applicant’s age. 

Note: Census records from 1900 through 

1950 contain certain citizenship 

information. To secure this information 

the applicant, recipient or State should 

complete a Form BC–600, Application 

for Search of Census Records for Proof 

of Age. Add in the remarks portion 

‘‘U.S. citizenship data requested.’’ Also 

add that the purpose is for Medicaid 

eligibility. This form requires a fee. 

(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. 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) An amended U.S. public birth 

record that is amended 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. 

(3) Institutional admission papers 

from a nursing facility, skilled care 

facility or other institution. 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. Note: For children under 16 

the document must have been created 

near the time of birth or 5 years. 

(5) Written affidavit. Affidavits should 

ONLY be used in rare circumstances. If 

the documentation requirement needs to 

be met through affidavits, the following 

rules apply: 

(i) There must be at least two 

affidavits by two individuals who have 

personal knowledge of the event(s) 

establishing the applicant’s or 


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39228 Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 

recipient’s claim of citizenship (the two 

affidavits could be combined in a joint 

affidavit). 

(ii) At least one of the individuals 

making the affidavit cannot be related to 

the applicant or recipient. Neither of the 

two individuals can be the applicant or 

recipient. 

(iii) In order for the affidavit to be 

acceptable the persons making them 

must be able to provide proof of their 

own citizenship and identity. 

(iv) If the individual(s) making the 

affidavit has (have) information which 

explains why documentary evidence 

establishing the applicant’s claim or 

citizenship does not exist or cannot be 

readily obtained, the affidavit should 

contain this information as well. 

(v) The State must obtain a separate 

affidavit from the applicant/recipient or 

other knowledgeable individual 

(guardian or representative) explaining 

why the evidence does not exist or 

cannot be obtained. 

(vi) The affidavits must be signed 

under penalty of perjury. 

(e) Evidence of identity. The following 

documents may be accepted as proof of 

identity and must accompany a 

document establishing citizenship from 

the groups of documentary evidence of 

citizenship in the groups in paragraphs 

(b) through (d) of this section. 

(1) A driver’s license issued by a State 

or Territory either with a photograph of 

the individual or other identifying 

information such as name, age, sex, 

race, height, weight, or eye color. 

(2) School identification card with a 

photograph of the individual. 

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

(4) Identification card issued by the 

Federal, State, or local government with 

the same information included on 

driver’s licenses. 

(5) Military dependent’s identification 

card. 

(6) Native American Tribal document. 

(7) U.S. Coast Guard Merchant 

Mariner card. 

(8) 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) Native American Tribal 

document. 

(vii) U.S. Coast Guard Merchant 

Mariner card. 

Note to paragraph (e)(8): 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. 

(9) Certificate of Degree of Indian 

Blood, or other U.S. 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. 

(10) At State option, a State may use 

a cross match with a Federal or State 

governmental, public assistance, law 

enforcement or corrections agency’s 

data system to establish identity if the 

agency establishes and certifies true 

identity of individuals. Such agencies 

may include food stamps, child support, 

corrections, including juvenile 

detention, motor vehicle, or child 

protective services. The State Medicaid 

Agency is still responsible for assuring 

the accuracy of the identity 

determination. 

(f) Special identity rules for children. 

For children under 16, school records 

may include nursery or daycare records. 

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 or 

guardian stating the date and place of 

the birth of the child and cannot be used 

if an affidavit for citizenship was 

provided. 

(g) Special populations needing 

assistance. States must assist 

individuals to secure satisfactory 

documentary evidence of citizenship 

when because of incapacity of mind or 

body the individual would be unable to 

comply with the requirement to present 

satisfactory documentary evidence of 

citizenship in a timely manner and the 

individual lacks a representative to 

assist him or her. 

(h) Documentary evidence. 

(1) All documents must be either 

originals or copies certified by the 

issuing agency. Copies or notarized 

copies may 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. 

(i) Record retention. The State must 

retain documents in accordance with 45 

CFR 74.53. 

(j) Reasonable opportunity to present 

satisfactory documentary evidence of 

citizenship. States must give an 

applicant or recipient a reasonable 

opportunity to submit satisfactory 

documentary evidence of citizenship 

before taking action affecting the 

individual’s eligibility for Medicaid. 

The time States give for submitting 


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Federal Register / Vol. 71, No. 133 / Wednesday, July 12, 2006 / Rules and Regulations 39229 

documentation of citizenship should be 

consistent with the time allowed to 

submit documentation to establish other 

facets of eligibility for which 

documentation is requested. (See 

§ 435.930 and § 435.911 of this chapter.) 

§ 436.408 [Removed and reserved] 

■ 14. Section 436.408 is removed and 

reserved. 

§ 436.1004–§ 436.1005 [Redesignated] 

■ 15. Sections 436.1004 and § 436.1005 

are redesignated as § 436.1005 and 

§ 436.1006, respectively. 

■ 16. New section 436.1004 is added to 

read as follows: 

§ 436.1004 FFP in expenditures for 

medical assistance for individuals who 

have declared United States citizenship or 

nationality under section 1137(d) of the Act 

and with respect to whom the State has not 

documented citizenship and identity. 

FFP will not be available to a State 

with respect to expenditures for medical 

assistance furnished to individuals 

unless the State has obtained 

satisfactory documentary evidence of 

citizenship or national status, as 

described in § 436.407 that complies 

with the requirements of section 1903(x) 

of the Act. This requirement does not 

apply with respect to individuals 

declaring themselves to be citizens or 

nationals who are eligible for medical 

assistance and who are either entitled to 

benefits or enrolled in any parts of the 

Medicare program under title XVIII of 

the Social Security Act. 

Technical Amendments 

§ 436.1005 [Amended] 

■ 17. In newly redesignating § 436.1005, 

in paragraph (a)(1), ‘‘§ 435.1009’’ is 

revised to read ‘‘§ 435.1010 of this 

chapter.’’

§ 436.1006 [Amended] 

■ 18. In newly redesignating § 436.1006, 

‘‘§ 435.1009 of this subchapter’’ is 

revised to read ‘‘§ 435.1010 of this 

chapter.’’

PART 440—SERVICES: GENERAL 

PROVISIONS 

■ 19. The authority citation for part 440 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

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

§ 440.2 [Amended] 

■ 20. In § 440.2, in paragraph (a), in the 

definition of ‘‘Patient,’’ ‘‘§ 435.1009 of 

this subchapter’’ is revised to read 

‘‘§ 435.1010 of this chapter.’’

§ 440.140 [Amended] 

■ 21. In § 440.140, in paragraph (b), 

‘‘§ 435.1009 of this chapter’’ is revised 

to read ‘‘§ 435.1010 of this chapter.’’

§ 440.180 [Amended] 

■ 22. In § 440.180, in paragraph (d)(2)(i), 

‘‘§ 435.1008(a)(2) of this subchapter’’ is 

revised to read ‘‘§ 435.1009(a)(2) of this 

chapter.’’

§ 440.185 [Amended] 

■ 23. In § 440.185, in paragraph (b), 

‘‘§ 435.1009’’ is revised to read 

‘‘§ 435.1010 of this chapter.’’

PART 441—SERVICES: 

REQUIREMENTS AND LIMITS 

APPLICABLE TO SPECIFIC SERVICES 

■ 24. The authority citation for part 441 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

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

§ 441.13 [Amended] 

■ 25. In § 441.13, in paragraph (a)(1), 

§ 435.1009 of this subchapter’’ is revised 

to read ‘‘§ 435.1010 of this chapter.’’

PART 457—ALLOTMENTS AND 

GRANTS TO STATES 

■ 26. The authority citation for part 457 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

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

§ 457.310 [Amended] 

■ 27. In § 457.310, in paragraphs (c)(2)(i) 

and (c)(2)(ii), ‘‘§ 435.1009 of this 

chapter’’ is revised to read § 435.1010 of 

this chapter.’’

PART 483—REQUIREMENTS FOR 

STATES AND LONG TERM CARE 

FACILITIES 

■ 28. The authority citation for part 483 

continues to read as follows: 

Authority: Secs. 1102 and 1871 of the 

Social Security Act (42 U.S.C. 1302 and 

1395hh). 

§ 483.5 [Amended] 

■ 29. In § 483.5, in paragraph (a), 

‘‘§ 435.1009 of this chapter’’ is revised 

to read ‘‘§ 435.1010 of this chapter.’’

§ 483.20 [Amended] 

■ 30. In § 483.20, in paragraph (m)(2)(ii), 

‘‘42 CFR 435.1009’’ is revised to read 

§ 435.1010 of this chapter.’’

§ 483.102 [Amended] 

■ 31. In § 483.102, in paragraph 

(b)(3)(ii), ‘‘§ 435.1009 of this chapter’’ is 

revised to read ‘‘§ 435.1010 of this 

chapter.’’

§ 483.136 [Amended] 

■ 32. In § 483.136, in paragraph (a), 

‘‘§§ 435.1009 and 483.440 of this 

chapter’’ is revised to read ‘‘§ 435.1010 

of this chapter and § 483.440.’’

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: June 23, 2006. 

Mark B. McClellan, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: June 30, 2006. 

Michael O. Leavitt, 

Secretary. 

[FR Doc. 06–6033 Filed 7–6–06; 5:00 pm] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 15 

[ET Docket No. 03–122; FCC 06–96] 

Unlicensed Devices in the 5 GHz Band 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: This document addresses 

petitions for reconsideration and 

clarification of the Commission’s rules 

for 5 GHz U–NII devices adopted in the 

Report and Order in ET Docket No. 03–

122 and revises the measurement 

procedures for certifying U–NII devices 

in the 5 GHz band. Our action will 

ensure that all applications for 

equipment certification of U–NII 

devices comply with the U–NII 

requirements. 

DATES: Effective August 11, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Shameeka Hunt, Policy and Rules 

Division, Office of Engineering and 

Technology, (202) 418–2062, e-mail: 

Shameeka.Hunt@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s 

Memorandum Opinion and Order, ET 

Docket No. 03–122, FCC 06–96, adopted 

June 29, 2006, and released June 30, 

2006. The full text of this document is 

available for inspection and copying 

during regular business hours in the 

FCC Reference Center (CY–A257) 445 

12th Street, SW., Washington, DC 

20554. The complete text of this 

document also may be purchased from 

the Commission’s copy contractor, Best 

Copy and Printing Inc., Portals II, 445 

12th Street, SW., Room CY–B402, 

Washington, DC 20554; telephone (202) 

488–5300; fax (202) 488–5563; e-mail 

FCC@BCPIWEB.COM. 


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