Analysis and Changes under the Final DRA Rule (July ’07)

Changes to the Citizenship Documentation Requirements under the Final Rule published 72 Fed. Reg. 38662-38697 (July 13, 2007) 
Significant additions to the tiered list of acceptable documents: 
First Level: No new additions 
Second Level:
  • States may verify citizenship of a naturalized citizen through the SAVE program. (Requires an MOU with the DHS.) 
  • Evidence of citizenship under the Child Citizenship Act of an adopted or biological child born outside of the U.S. 
Third Level:
  • Religious records recorded in the U.S. within 3 months of birth that show a U.S. place of birth and show either the date of birth or the age of the individual at the time the record was made 
  • Early school records showing a U.S. place of birth 
  • Souvenir ?birth certificates? issued by a hospital are not acceptable. 
Fourth Level:
  • Naturalized, as well as native-born, citizens may also use affidavits 
  • Roll of Alaska Natives maintained by the BIA


  • A state may accept an identity affidavit signed under penalty of perjury by a residential care facility director or administrator on behalf of an institutionalized individual in the facility. 
  • For children under 16, clinic, doctor, hospital or school records (including report cards) may be accepted for identity purposes. School records must be verified with the school.
  • Affidavit allowed for a child under 18 if neither a school identity document nor a driver?s license is available to people in the area under 18. 
  • Affidavits for children now may also be signed by a caretaker relative. 
  • A combination of three or more of these documents: Employer ID cards, high school and college diplomas from accredited schools (including GED certificates), marriage certificates, divorce decrees, and property deeds/titles

Changes in or further explanation of CMS policy since the Interim Final Rule, 71 Fed. Reg. 39214-39229 (July 12, 2006) 
Individuals receiving Social Security Disability payments and children who are in foster care under Title IV-B or receiving foster care or adoption assistance under Title IV-E are exempt. 
States may accept documents from the third or fourth levels if the documents from the higher levels are simply unavailable. In the Interim Final Rule, the documents in the higher levels needed to not only be unavailable, but also either did not exist or could not be obtained within the state?s reasonable opportunity period. 
Naturalized citizens may submit affidavits to verify citizenship. [42 C.F.R. § 435.407(d) at 38692.] This change may be helpful to naturalized citizens who have lost naturalization papers and cannot afford to obtain new ones. These affidavits do not need to be notarized. 
A child who is born to a woman who is receiving Medicaid on the date of the birth is deemed Medicaid-eligible for one year so long as the mother remains eligible and the child is a member of the woman?s family. (p.38676) This includes a newborn of a woman who is found retroactively eligible for labor and delivery services. (p.38676) CMS policy now includes infants born to undocumented women as well. (See 42 C.F.R. § 435.117 at 38690-38691) However, the policy to require documentation for an infant whose Medicaid-covered birth indicates that s/he is a U.S. citizen by birth continues to make no logical sense. 
Although current SSI and SSDI beneficiaries are exempt from the need to provide documentation, states may continue to use the State Data Exchange (SDX) to confirm receipt of either of these benefits. (pp. 38664, 38681, 38682). The SDX also shows individuals who are in suspense due to earnings, so this may be helpful with state data matches. 
States must keep copies of the documentation in the case record or database. The copies may be electronic records of matches or other electronic methods of storing information. States must maintain the documents for at least three years. (pp. 38666, 38685, 38686) If an
individual applies years later and the copies of the documents are no longer in the state records, the individual must provide them again. (p. 38685) An electronic marker from a prior period indicating that the citizenship verification process was completed cannot replace retained copies of the documents. (p. 38685) Thus, providing this documentation is not truly a one-time process, but may be requested again if a state has not maintained a paper or electronic copy of the beneficiary?s documents. 
A state may not enroll a potentially Medicaid-eligible child into an SCHIP program pending the citizenship documentation required in the Medicaid application process. (p. 38670)

Availability of documents under the hierarchy: If a lower level document is readily available, a state would not need to require a person to obtain a document which cannot be made available within the reasonable opportunity period. States have the authority (and flexibility) to determine when a document is considered unavailable. A person is not expected to purchase a passport when s/he does have other evidence of citizenship and identity available. (p. 38671) This discussion of ?availability? may be helpful in some circumstances. 

Emergency medical treatment under Section 1903(v)(2) is available only to non-qualified aliens and qualified aliens subject to the five-year bar. It is not available to citizens who are not eligible under the citizenship documentation provisions. Thus, FFP is not available for covering citizens who have not yet provided this documentation. (p.38674, 38682) Affidavits must be signed under penalty of perjury, but they do not need to be notarized. (p.38677) This clarification and the accompanying rule change are welcome relief in states that require an affidavit to be notarized. Applicants and beneficiaries need not incur this additional cost. 
For affidavits, an individual has ?personal knowledge? of circumstances if he or she has knowledge about the event that established a person?s citizenship or has personally seen a document establishing citizenship?such as a passport that burned in a fire. The individual should be able to share details surrounding the event. (p. 38678-38679) An affiant who has seen a document establishing citizenship without having personal knowledge of the circumstances of the applicant/beneficiary?s citizenship-establishing event is a new development. 
Recently expired identity documents are acceptable as long as there is no reason to believe that the document does not match the individual. (p. 38680) 
Abandoned babies are not exempt from the requirements, except if they are in foster care and therefore exempt as other foster or adoption assistance children receiving Title IV-B or Title IV-E benefits are. (p.38682) 
Continuation of CMS policy since the Interim Final Rule (July 12, 2006) 
Individuals receiving Medicaid benefits under a Section 1115 demonstration project, including expansion projects and family planning demonstrations, are subject to the citizenship documentation requirements (p. 38682) CMS is continuing to apply the citizenship documentation requirements to these groups as it did under the Interim Final Rule last year. 
States may receive FFP for services provided under presumptive eligibility. However, when the applicant files an application for Medicaid and declare citizenship or nationality, they must provide documentation. This is a continuation of CMS policy from last year?s Interim Final Rule. 
States may receive FFP at the administrative rate (50%) for complying with the requirements. (pp.38663-38664)
A state may deny a person at any point in the application process if the state determines that the individual is not making a good faith effort to comply with any part of the application process. (p. 38684) 
If a state believes that a document is questionable, the state may reject the document or it may contact the issuing agency to determine whether the document is authentic. (p.38684) 
Significant or interesting comments to the Final Rule: 
?The rule did not change Medicaid eligibility requirements.? (p. 38666) 
A state may accept citizenship and identity documents of a woman whose last name changed due to marriage. The state may (but is not required to) ask for documentation such as a marriage license verifying the change. (p. 38670) This clarification could be helpful for many women who changed their surnames at marriage. 
Immunization records maintained by a medical care provider are considered medical records. (p. 38674) CMS sought to distinguish between immunization records that an individual may maintain at home versus those maintained by a health care provider. However, CMS did not amend the regulations to recognize this distinction. 
All of the protections of the Civil Rights Act, Americans with Disabilities Act, and the Rehabilitation Act apply (p.38681)

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