Medicaid Program; Citizenship Documentation Requirements, 39214-39229 [06-6033]

Agencies

• Centers for Medicare & Medicaid Services
• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 71, Number 133 (Wednesday, July 12, 2006)]
[Rules and Regulations]
[Pages 39214-39229]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6033]


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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 https://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: https://
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.

    (a) Primary evidence of citizenship and identity. The following 
evidence must be accepted as satisfactory documentary evidence of both 
identity and citizenship:
    (1) A U.S. passport. The Department of State issues this. A U.S. 
passport does not have to be currently valid to be accepted as evidence 
of U.S. citizenship, as long as it was originally issued without 
limitation. Note: Spouses and children were sometimes included on one 
passport through 1980. U.S. passports issued after 1980 show only one 
person. Consequently, the citizenship and identity of the included 
person can be established when one of these passports is presented. 
Exception: Do not accept any passport as evidence of U.S. citizenship 
when it was issued with a limitation. However, such a passport may be 
used as proof of identity.
    (2) A Certificate of Naturalization (DHS Forms N-550 or N-570.) 
Department of Homeland Security issues for naturalization.
    (3) A Certificate of U.S. Citizenship (DHS Forms N-560 or N-561.) 
Department of Homeland Security issues certificates of citizenship to 
individuals who derive citizenship through a parent.
    (4) A valid State-issued driver's license, but only if the State 
issuing the license requires proof of U.S. citizenship before issuance 
of such license or obtains a social security number from the applicant 
and verifies before certification that such number is valid and 
assigned to the applicant who is a citizen. (This provision is not 
effective until such time as a State makes providing evidence of 
citizenship a condition of issuing a driver's license and evidence that 
the license holder is a citizen is included on the license or in a 
system of records available to the Medicaid agency. The State must 
ensure that the process complies with this statutory provision in 
section 6036 of the Deficit Reduction Act of 2005. CMS will monitor 
compliance of States implementing this provision.); or
    (5) At the State's option, for States which do not provide Medicaid 
to individuals by virtue of their receiving SSI, a State match with the 
State Data Exchange for Supplementary Security Income recipients. The 
statute gives the Secretary authority to establish other acceptable 
forms of citizenship documentation. SSA documents citizenship and 
identity for SSI applicants and recipients and includes such 
information in the database provided to the States.
    (b) Secondary evidence of citizenship. If primary evidence from the 
list in paragraph (a) of this section is unavailable, an applicant or 
recipient should provide satisfactory documentary evidence of 
citizenship from the list specified in this section to establish 
citizenship and satisfactory documentary evidence from paragraph (e) of 
this section to establish identity, in accordance with the rules 
specified in this section.
    (1) A U.S. public birth certificate showing birth in one of the 50 
States, the District of Columbia, Puerto Rico (if born on or after 
January 13, 1941), Guam (on or after April 10, 1899), the Virgin 
Islands of the U.S. (on or after January 17, 1917), American Samoa, 
Swain's Island, or the Northern Mariana Islands (after November 4, 1986 
(NMI

[[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 evid