[Code of Federal Regulations]

[Title 42, Volume 4]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR436.407]



[Page 191-196]

 

                         TITLE 42--PUBLIC HEALTH

 

  CHAPTER IV--CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF 

                  HEALTH AND HUMAN SERVICES (CONTINUED)

 

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

 

               Subpart E_General Eligibility Requirements

 

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



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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



[[Page 193]]



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. 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



[[Page 194]]



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 

recipient's



[[Page 195]]



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



[[Page 196]]



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 of this 

chapter.)



[71 FR 39226, July 12, 2006]