Stay up to date on the latest news and legislative alerts in mental health law: Email   ZIP For RSS readers
	More information The Bazelon Center’s comment letter on citizenship documentation Hierarchy of Acceptable Documents to Prove Citizenship and Identity Updated 7/07  The interim regulation

Medicaid Rule on Citizenship Still Threatens Access to Care

Problems Persist for Many Recipients; Comments Sought on Interim Rules

July 19, 2006―The Centers for Medicare and Medicaid Services (CMS) has published rules for the requirement in the Deficit Reduction Act (DRA) that all Medicaid recipients produce documentation of identity and U.S. citizenship (see the March 21 Bazelon Center Mental Health Policy Reporter). The regulations, published in the July 12, 2006 Federal Register (Volume 71, Number 133), are “interim final,” which means they are in effect even as CMS accepts comments.

New Rules Exempt 8 Million, But Many Remain at Risk

The regulations come on the heels of a state guidance released by CMS on June 9 (see the June 23 Bazelon Center Mental Health Policy Reporter), just a couple of weeks before the law’s effective date. The new rules make a significant change to that guidance by exempting individuals who receive Medicare or Supplemental Security Income (SSI) because they have already met certain documentation requirements. This exemption affects about 8 million vulnerable Medicaid recipients.

Nonetheless, many U.S. citizens who are Medicaid-eligible―including people with mental illnesses, foster children and the homeless―remain at risk of being denied access to essential health and mental health services because they cannot produce the necessary documents on a timely basis.

Comments Needed by August 11th

Even though they are in effect, the rules can be changed if enough people file comments about problems such as those described in this Action Alert. Below is a summary of the regulations and the problems they raise, along with a link to the Bazelon Center’s comment letter, which can be used as a guide for your comments.

Until now, Medicaid applicants in most states were only required to self-attest to U.S. citizenship under penalty of perjury. The new requirement was enacted with the support of policymakers who asserted that illegal immigrants were falsely claiming citizenship. The Office of Inspector General at the Department of Health and Human Services found no substantial evidence of such problems.

Under the DRA, all new Medicaid applicants and all beneficiaries undergoing their first redetermination after July 1, 2006 must prove their citizenship. All states, whether or not they already had a system for establishing citizenship of their Medicaid recipients, must either modify their procedures or establish new ones, or they will lose federal Medicaid funds. The typical federal administrative match (50%) will be available for expenses related to implementation of the new law.

What Documentation Is Required, and When

Medicaid eligibility is conditioned on evidence of both citizenship status and identity. The rules list a hierarchy of acceptable documents, starting with a U.S. passport or naturalization certificate as primary documents that verify both citizenship and identity. A second level, for which separate proof of identity is required, includes such items as a birth certificate or adoption decree or a record of military service that shows a U.S. place of birth. The rules list numerous other documents as third- or fourth-level proof. Affidavits can be used only in rare circumstances, when no other source is available. All documents must be originals or copies certified by the issuing agency. Documents listed in the lower levels of acceptable evidence are only to be used when documents in the higher levels are unavailable. 

In addition to proving citizenship status, individuals must document their identity. Various photo-ID cards are acceptable, including drivers’ licenses, school and other government-agency IDs. States may also cross match with certain other state databases, but mental health-agency databases are not included on the list.

Once citizenship and identity have been established, documentation is not needed again.  However, states are required to keep records for only three years, so people who go on and off Medicaid, as many do, could face the documentation requirement again.

States must give applicants a “reasonable opportunity” to present documents. Current beneficiaries remain on Medicaid during the period while they are making a good-faith effort to provide documentation. However, new applicants must prove their status before they can be eligible. Applicants or recipients who fail to cooperate with the state in presenting the evidence  may be denied or terminated from the program.

States must assist certain groups of applicants in securing the necessary documents. These include individuals who have a mental or physical disability. An individual need not be present to submit documentary evidence.

Problems with the Rule

The interim regulations still leave many vulnerable U.S. citizens who are eligible for Medicaid at risk of being denied access to necessary health care because they are unable to produce the required documents on a timely basis.

These problems should be highlighted in comments to CMS.      

Children in Foster Care Are Particularly Affected

Children in foster are generally eligible for Medicaid and have high rates of both medical and mental health problems, yet many will have difficulty documenting citizenship. States have an affirmative obligation to provide medical care to children in foster care. Children entering foster care and those currently receiving foster care services should have immediate access to Medicaid coverage without delay, when eligible.  

Foster families (and states) are highly likely to have trouble obtaining birth certificates or other documents in a timely manner, putting these children at risk of foregoing necessary health care.  Moreover, many children in foster care already had their citizenship status verified when their eligibility was established for Title IV-E federal foster care payments. Yet the regulations do not provide an exemption for this population. Title IV-E (like SSI) is linked with Medicaid, once eligibility for foster care payments is established. In light of this fact, Title IV-E children should be exempt from the citizenship requirements.

Children in foster care who do not qualify under Title IV-E will also face problems. They are likely to come from environments where documents are not readily available, and obtaining a birth certificate takes time and money that many foster families find in short supply. States have wide discretion to define a “reasonable opportunity” to obtain proof of citizenship, and their definition may not reflect the time a foster family needs to work through the process of obtaining the documents. States should be able to accept child welfare records or electronic exchanges of information between the child welfare and Medicaid agency to verify citizenship.

Vulnerable Disabled and Aged Populations

Although the regulations exempt individuals who are on Medicare and SSI, the rule fails to consider the group of disabled applicants/recipients who have been found eligible for Social Security Disability Income (SSDI) but are in the waiting period for Medicare or SSDI. Similarly, gaps remain for TANF families and children and SCHIP applicants or recipients who receive either Old Age Survivor and Disability Income (OASDI), retirement or disability auxiliary benefits from the Social Security Administration (SSA), or early age-62 retirees and age 60 widow(er) OASDI beneficiaries, whose citizenship has already been verified by SSA.

Insufficient Assistance

The regulations require states to assist individuals with an “incapacity of mind or body” in securing documents of citizenship status when they are unable to comply in a timely manner and lack a representative who could assist them. The preamble, but not the actual regulations includes people who are homeless as well as those who have amnesia, mental illnesses or physical incapacity. Victims of natural disasters, whose documents may have been destroyed, should be (but are not) included.

Arbitrary Date for Submission of Documents

The regulations provide for certain documents (such as medical records and hospital admission papers) to be accepted as a third- or fourth-level proof of citizenship. However, it is arbitrary to require that such documents be issued at least five years before the application for Medicaid. Many eligible beneficiaries will have moved once or more in the previous five years and may be unable to locate such papers. It should suffice that documents (such as medical records) exist by the effective date of the regulations. Given the recent release and short time frame for the effective date of these new rules, it is highly unlikely that a person considering fraudulent behavior would have known to produce such specific documents.

Once and Only Once

The regulations should specify that once any state has determined evidence of citizenship and identity, the requirement is deemed met in all states where the individual later resides and for all time. States should be required to maintain records of citizenship indefinitely.

Comments Are Needed to Highlight Problems

The more public comments highlighting such problems CMS receives, the more likely it is that the rules can be modified. The Bazelon Center has drafted comments and you are welcome to use all or any part of the text as the basis for your own.

How to Submit Your Comments

Comments must be submitted before 5 pm on August 11, 2006. They must reference File Code CMS-2257-IFC and may be submitted:

• Electronically via the CMS website. Submissions in Microsoft Word format are preferred but Word Perfect and Excel are also acceptable. 
• Regular mail―one original and two copies mailed to CMS, Department of Health and Human Services, Attention: CMS-2257-IFC, P.O. Box 8017, Baltimore, MD 21244-8017. Remember, it must arrive by 5 pm on August 11.  
• Express/overnight mail―one original and two copies to CMS, Department of Health and Human Services, Attention: CMS-2257-IFC, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850
• Hand or courier―one original and two copies

For more information on the submission of comments, contact Robert Tomlinson of CMS at 410-786-4463