FR Doc 06-6033

[Federal Register: July 12, 2006 (Volume 71, Number 133)]
[Rules and Regulations]
[Page 39214-39229]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy06-9]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 435, 436, 440, 441, 457, and 483

[CMS-2257-IFC]
RIN 0938-AO51

Medicaid Program; Citizenship Documentation Requirements

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Interim Final rule with comment period.

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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.

[[Page 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. Self-attestation of citizenship and
identity is no longer an acceptable practice. The provisions of section
6036 of the DRA do not affect individuals who have declared they are
aliens in a satisfactory immigration status. As with other Medicaid
program requirements, States must implement an effective process for
assuring compliance with documentation of citizenship and identity in
order to obtain Federal matching funds, and effective compliance will
be part of Medicaid program integrity monitoring.
Section 6036 of the DRA 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

[[Page 39216]]

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 non-qualified 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 Sec. 435.930. A determination terminating eligibility
may be made after the recipient has been given a reasonable opportunity
to present evidence of citizenship or the State determines the
individual has not made a good faith effort to present satisfactory
documentary evidence of citizenship. By contrast, applicants for
Medicaid (who are not currently receiving Medicaid), should not be made
eligible until they have presented the required evidence. This is no
different than current policy regarding information which an 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 Sec. 435.911. The regulations permit
exceptions from the time limits when an applicant or recipient in good
faith tries to present documentation, but is unable to do so because
the documents are not available. 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.

[[Page 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 Sec. 435.902, Sec. 435.910(e), Sec. 435.912, Sec.
435.919 and Sec. 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 Sec. 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 Sec. 455.13(c) and Sec. 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 Sec. 435.406 and Sec. 436.406 to require that
States obtain a Declaration signed under penalty of perjury from every
applicant for Medicaid that the applicant is a citizen or national of
the United States or an alien in a satisfactory immigration status, and
require the individual to provide documentary evidence to verify the
declaration. The types and forms of acceptable documentation of
citizenship are specified in Sec. 435.407 and Sec. 436.407. 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 Sec. 435.406 and Sec. 436.406 to define
``Satisfactory immigration status as a Qualified Alien'' as described
in 8 U.S.C. 1641(b). We are also amending Sec. 435.406 and Sec.
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

[[Page 39218]]

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 Sec. 435.407 and a new Sec. 436.407
describing the documents and processes States may use to document an
applicant's or recipient's declaration that the individual is a citizen
of the United States. The documents include all the documents listed in
section 6036 of the DRA plus additional documents. We 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 Sec.
435.407(a) and Sec. 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 Sec. 435.407(e) and
Sec. 436.407(e). Available evidence is evidence that exists and can be
obtained within a State's reasonable opportunity period. The State must
accept any of the documents listed in paragraph (b) if the document
meets the listed criteria and there is nothing indicating the person is
not a U.S. citizen. 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

[[Page 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 non-government
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

[[Page 39220]]

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 Sec. 435.408 and Sec. 436.408 because the
immigration status described as permanently residing in the United
States under color of law no longer has any effectiveness because of
the enactment 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 Sec. 435.1008 through Sec. 435.1011 as Sec.
435.1009 through Sec. 435.1012, respectively. We are redesignating
Sec. 436.1004 and Sec. 436.1005 as Sec. 436.1005 and Sec. 436.1006,
respectively. We are correcting cross references in title 42 to the
redesignated sections. We are adding a reference in Sec. 435.1002(a)
to new Sec. 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 Sec. 435.1008 and a new Sec. 436.1004 to provide
that FFP will be available if the State complies with the requirements
of section 1903(x) of the Act and Sec. 435.407 and Sec. 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 (Sec. 435.406)

Section 435.406 requires States to obtain a declaration signed
under penalty of perjury from every applicant for Medicaid that the
applicant is a citizen or national of the United States or an alien in
a satisfactory immigration status, and require the individual to
provide acceptable documentary evidence to verify the declaration.
(Sec. 435.407 describes the types of acceptable documentary evidence
of citizenship.)
An individual should ordinarily be required to submit evidence of
citizenship once unless the State receives evidence that evidence
previously relied upon may be incorrect. States must maintain copies of
that evidence in the case file or database.
We 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 (Sec. 436.406)

Sections 436.406 and 436.407 apply to Guam, Puerto Rico, and the
Virgin Islands and are the corresponding sections to the regulations at
Sec. 435.406 and Sec. 435.407. 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

[[Page 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

[[Page 39222]]

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.

0
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

0
1. The authority citation for part 435 continues to read as follows:

Authority: Section 1102 of the Social Security Act (42 U.S.C.
1302).

0
2. In Sec. 435.403, in paragraph (b), ``Sec. 435.1009 of this
chapter'' is revised to read Sec. 435.1010.''

0
3. Section 435.406 is amended by--
0
A. Revising paragraph (a)(1).
0
B. Revising paragraph (a)(2).
0
C. Removing paragraphs (a)(3) and (a)(4).
0
D. Removing paragraph (b).
0
E. Redesignating paragraph (c) as paragraph (b).
0
F. Removing paragraph (d).
The revisions read as follows:

Sec. 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 Sec. 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.
* * * * *

0
4. A new Sec. 435.407 is added to read as follows:

Sec. 435.407 Types of acceptable documentary evidence of citizenship.

[[Page 39223]]

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

[[Page 39224]]

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

[[Page 39225]]

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 Sec. 435.930 and Sec. 435.911.)

Sec. 435.408 [Removed]

0
5. Section 435.408 is removed.

0
6. Section 435.1002 is amended by revising paragraph (a) to read as
follows:

Sec. 435.1002 FFP for services.

(a) Except for the limitations and conditions specified in Sec.
435.1007, Sec. 35.1008, Sec. 435.1009, and Sec. 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.
* * * * *

Sec. 435.1008-Sec. 435.1011 [Redesignated]

0
7. Sections 435.1008 through 435.1011 are redesignated as Sec.
435.1009 through Sec. 435.1012, respectively. Newly redesignated Sec.
435.1011 and Sec. 435.1012 are under the undesignated heading
``Requirements for State Supplements.''

0
8. A new Sec. 435.1008 is added to read as follows:

Sec. 435.1008 FFP in expenditures for medical assistance for
individuals who have declared United States citizenship or nationality
under section 1137(d) of the Act and with respect to whom the State has
not documented citizenship and identity.

FFP will not be available to a State with respect to expenditures
for medical assistance furnished to individuals unless the State has
obtained satisfactory documentary evidence of citizenship or national
status, as described in Sec. 435.407 that complies with the
requirements of section 1903(x) of the Act. 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.

0
9. In newly redesignated Sec. 435.1009, in paragraph (a)(1), ``Sec.
435.1009'' is revised to read ``Sec. 435.1010.''

PART 436--ELIGIBILITY IN GUAM, PUERTO RICO, AND THE VIRGIN ISLANDS

0
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).

Sec. 436.406 [Amended]

0
11. In Sec. 436.403, paragraph (b), ``Sec. 435.1009 of this chapter''
is revised to read ``Sec. 435.1010 of this chapter.''

0
12. Section 436.406 is amended by--
0
A. Revising paragraph (a)(1).
0
B. Revising paragraph (a)(2).
0
C. Removing paragraphs (a)(3) and (a)(4).
0
D. Removing paragraph (b).
0
E. Redesignating paragraph (c) as paragraph (b).
0
F. Removing paragraph (d).
The revisions read as follows:

Sec. 436.406 Citizenship and alienage.

[[Page 39226]]

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.
* * * * *

0
13. A new Sec. 436.407 is added to read as follows:

Sec. 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

[[Page 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

[[Page 39228]]

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

[[Page 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 Sec. 435.930 and Sec. 435.911
of this chapter.)

Sec. 436.408 [Removed and reserved]

0
14. Section 436.408 is removed and reserved.

Sec. 436.1004-Sec. 436.1005 [Redesignated]

0
15. Sections 436.1004 and Sec. 436.1005 are redesignated as Sec.
436.1005 and Sec. 436.1006, respectively.

0
16. New section 436.1004 is added to read as follows:

Sec. 436.1004 FFP in expenditures for medical assistance for
individuals who have declared United States citizenship or nationality
under section 1137(d) of the Act and with respect to whom the State has
not documented citizenship and identity.

FFP will not be available to a State with respect to expenditures
for medical assistance furnished to individuals unless the State has
obtained satisfactory documentary evidence of citizenship or national
status, as described in Sec. 436.407 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

Sec. 436.1005 [Amended]

0
17. In newly redesignating Sec. 436.1005, in paragraph (a)(1), ``Sec.
435.1009'' is revised to read ``Sec. 435.1010 of this chapter.''

Sec. 436.1006 [Amended]

0
18. In newly redesignating Sec. 436.1006, ``Sec. 435.1009 of this
subchapter'' is revised to read ``Sec. 435.1010 of this chapter.''

PART 440--SERVICES: GENERAL PROVISIONS

0
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).

Sec. 440.2 [Amended]

0
20. In Sec. 440.2, in paragraph (a), in the definition of ``Patient,''
``Sec. 435.1009 of this subchapter'' is revised to read ``Sec.
435.1010 of this chapter.''

Sec. 440.140 [Amended]

0
21. In Sec. 440.140, in paragraph (b), ``Sec. 435.1009 of this
chapter'' is revised to read ``Sec. 435.1010 of this chapter.''

Sec. 440.180 [Amended]

0
22. In Sec. 440.180, in paragraph (d)(2)(i), ``Sec. 435.1008(a)(2) of
this subchapter'' is revised to read ``Sec. 435.1009(a)(2) of this
chapter.''

Sec. 440.185 [Amended]

0
23. In Sec. 440.185, in paragraph (b), ``Sec. 435.1009'' is revised
to read ``Sec. 435.1010 of this chapter.''

PART 441--SERVICES: REQUIREMENTS AND LIMITS APPLICABLE TO SPECIFIC
SERVICES

0
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).

Sec. 441.13 [Amended]

0
25. In Sec. 441.13, in paragraph (a)(1), Sec. 435.1009 of this
subchapter'' is revised to read ``Sec. 435.1010 of this chapter.''

PART 457--ALLOTMENTS AND GRANTS TO STATES

0
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).

Sec. 457.310 [Amended]

0
27. In Sec. 457.310, in paragraphs (c)(2)(i) and (c)(2)(ii), ``Sec.
435.1009 of this chapter'' is revised to read Sec. 435.1010 of this
chapter.''

PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES

0
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).

Sec. 483.5 [Amended]

0
29. In Sec. 483.5, in paragraph (a), ``Sec. 435.1009 of this
chapter'' is revised to read ``Sec. 435.1010 of this chapter.''

Sec. 483.20 [Amended]

0
30. In Sec. 483.20, in paragraph (m)(2)(ii), ``42 CFR 435.1009'' is
revised to read Sec. 435.1010 of this chapter.''

Sec. 483.102 [Amended]

0
31. In Sec. 483.102, in paragraph (b)(3)(ii), ``Sec. 435.1009 of this
chapter'' is revised to read ``Sec. 435.1010 of this chapter.''

Sec. 483.136 [Amended]

0
32. In Sec. 483.136, in paragraph (a), ``Sec. Sec. 435.1009 and
483.440 of this chapter'' is revised to read ``Sec. 435.1010 of this
chapter and Sec. 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