Medicaid Program; Citizenship Documentation Requirements, 38662-38697 [07-3291]

Agencies

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

[Federal Register Volume 72, Number 134 (Friday, July 13, 2007)]
[Rules and Regulations]
[Pages 38662-38697]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3291]



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Part II





Department of Health and Human Services





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Centers for Medicare & Medicaid Service



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42 CFR Parts 435, 436, 440, et al.



Medicaid Program; Citizenship Documentation Requirements; Final Rule

Federal Register / Vol. 72, No. 134 / Friday, July 13, 2007 / Rules 
and Regulations

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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-F]
RIN 0938-AO51


Medicaid Program; Citizenship Documentation Requirements

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

ACTION: Final rule.

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SUMMARY: This final rule 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. It also incorporates changes made to these requirements 
through section 405(c)(1)(A) of Division B of the Tax Relief and Health 
Care Act (TRHCA), Pub. L. 109-432, enacted December 20, 2006. 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 citizenship.

DATES: Effective Date: July 13, 2007.

FOR FURTHER INFORMATION CONTACT: Molly Smith (410) 786-8354.

SUPPLEMENTARY INFORMATION:

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. (For purposes of this regulation, the 
term ``citizenship'' (or reference to citizen) includes status as a 
``national of the United States,'' as defined in 8 U.S.C. 1101(a)(22)). 
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 of citizenship 
or immigration status were first required. Individuals who declared 
they were citizens did not have to do anything else under Federal law 
to support that claim, although some States did require documentary 
evidence of this claim. 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 
citizenship and identity. 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 created 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 and identity 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 and identity is a one-time 
activity; once a person's citizenship and identity have been 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 or identity. The 
State need only check its databases to verify that the individual 
already established his or her citizenship and identity.
    CMS continues to support States through ongoing outreach and 
technical assistance. CMS is monitoring States for compliance and has 
not initiated any action to disallow FFP.

Basic Features of the Provision

    On July 12, 2006, we published in the Federal Register the interim 
final rule titled ``Medicaid Program; Citizenship Documentation 
Requirements'' (CMS-2257-IFC) (71 FR 39214). In this interim final rule 
with comment period, we outlined the policy and guidelines States are 
required to follow to receive Federal financial participation (FFP) for 
medical care expenditures for Medicaid-eligible individuals with 
respect to the new section 1903(x) of the Act. We explained the types 
of documents that may be used including additional documents that may 
be accepted. We established a hierarchy of reliability of citizenship 
documents and specified when a document of lesser reliability may be 
accepted by the State.

Implementation Conditions/Considerations

    As we stated in the interim final rule with comment period, 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 several exemptions.
    In the interim final rule, we discussed a clear drafting error in 
section 6036 of the DRA, under which Congress provided an exemption 
such that aliens would not be required to present satisfactory 
documentary evidence of citizenship and identity in certain 
circumstances. (See 71 FR 39215 for a full discussion of the issue.) 
However, since publication of the DRA, section 405(c)(1)(A) of Division 
B of the TRHCA corrected the error by replacing the word ``alien'' with 
``individual declaring to be a citizen or national of the United 
States.'' Congress made this correction effective as if included in the 
DRA.
    This correction does not alter the policy as described in the 
interim final rule. Therefore, the policy continues to be that 
individuals declaring to be citizens or nationals of the United States 
who are receiving SSI or who are enrolled in any part of Medicare are 
exempt from these requirements.
    The TRHCA also amended section 1903(x)(2) to exempt additional 
groups of individuals from the provisions requiring presentation of 
satisfactory documentary evidence of citizenship and identity. These 
groups are:
     All individuals receiving SSI (the DRA only exempted 
individuals receiving Medicaid by virtue of receiving SSI);
     Individuals receiving disability insurance benefits under 
section 223 of the Act or monthly benefits under section 202 of the Act 
based on such individual's disability (as defined in section 223(d) of 
the Act); and

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     Individuals who are in foster care and who are assisted 
under Title IV-B of the Act and individuals who are recipients of 
foster care maintenance or adoption assistance payments under Title IV-
E of the Act.
    The above changes were made effective as if included in the DRA. 
CMS sent guidance to the States regarding these changes in a State 
Medicaid Director letter dated February 22, 2007.
    The TRHCA corrected another error included in section 6036 of the 
DRA by replacing the cross-reference to the non-existent ``subsection 
(i)(23)'' with the relevant subsection (i)(22). This correction does 
not change the policy as described in the interim final rule.
    In addition to the above exemptions, the statute gives the 
Secretary authority to exempt 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. If we become aware of an appropriate 
instance to exercise this authority, we will do so by regulation.
    Individuals who are receiving Medicaid benefits under a section 
1115 demonstration project approved under title XI authority are 
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), including 
individuals covered 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 Medicaid eligibility to a United States citizen 
child born to a woman who has applied for, has been determined eligible 
and is receiving Medicaid on the date of the child's birth. We discuss 
CMS policy with respect to this population in more detail in the 
Analysis of and Responses to Public Comment section below.
    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. States may receive FFP 
for the services provided to these individuals 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 applicant 
must submit in order for the State to make an eligibility 
determination.
    As discussed in the interim final rule with comment period, 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 or a third party fails to reply to a timely request. In 
these cases, the State must assist the individual in securing evidence 
of citizenship.
    States are permitted to accept documentary evidence without 
requiring the applicant or recipient to appear in person. States may 
accept original documents in person, by mail, or by a guardian or 
authorized representative. States, at their option, may also use 
matches with vital statistics agencies in place of a birth certificate 
to assist applicants or recipients to meet the requirements of the law.
    Although States may continue to use application procedures that do 
not include an interview with an applicant, the States must assure that 
the information received 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. Uncertified copies or notarized copies will not be 
accepted.
    The enactment of section 6036 of the DRA does not change any of our 
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 documentary evidence of citizenship and identity 
from applicants and recipients. 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 Sec.  431.210 or Sec.  431.211 as 
appropriate.

Federal Financial Participation (FFP) for Administrative Expenditures

    FFP is available for State expenditures to carry out the provisions 
of section 1903(x) of the Act at the match rate for program 
administration.

Compliance

    FFP is not 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. As part of the 
standard review and audit

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procedures under subpart C of 42 CFR Part 430, 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. As part of these reviews, we will monitor the extent to 
which the State is obtaining the most reliable evidence.
    In the conduct of determining or re-determining eligibility for 
Medicaid, State Medicaid agencies may uncover instances of suspected 
fraud. In these instances, State agencies would refer cases of 
suspected fraud to an appropriate enforcement agency according to the 
requirements of Sec.  455.13(c) and Sec.  455.15(b).
    HHS recognizes that in cases where the appropriate enforcement 
agency is a Federal entity, the Privacy Act of 1974 applies to United 
States 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

    We amended 42 CFR chapter IV as follows:
    We amended 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. 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 U.S. Citizenship and Immigration Services in the 
Department of Homeland Security) using the Systematic Alien 
Verification for Entitlements (SAVE) Program.
    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 also amended 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 amended Sec.  435.406 and Sec.  436.406 to 
remove paragraphs (b) and (d), as well as paragraphs (a)(3) and (a)(4). 
These provisions have ceased to have any force or effect because the 
eligibility status provided to individuals who received Lawful 
Temporary Residence under the 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 legalization 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 8 U.S.C. 1641 are not eligible for 
any Federal public benefit. That term includes Medicaid.
    We added 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 noted that the State Medicaid 
agency determinations of citizenship are not binding on other Federal 
or State agencies for any other purposes. We employed a hierarchy of 
reliability when securing documentary evidence of citizenship and 
identity to assure that evidence submitted is the most reliable 
evidence available to establish a claim 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 the most current 
identifying information that relates the presenting individual to the 
person named on the document.
    We 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 because it is established by statute. If an individual 
presents documents from this section, no other information is 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 attempt to obtain primary evidence of 
citizenship and identity before using secondary evidence. We permitted 
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. Since 
all individuals in receipt of SSI are now exempt from these 
requirements, this provision is irrelevant and has been removed from 
the regulations text. However, States may still use the SDX to confirm 
whether an individual is exempt from the provision based on receipt of 
SSI. Similarly, State may use SSA's Beneficiary Data Exchange (BENDEX) 
data base to confirm whether an individual is exempt from the provision 
based on receipt of SSDI.

Secondary Evidence of Citizenship

    In the interim final rule with comment period, we stated that 
secondary evidence of citizenship is documentary evidence of 
satisfactory reliability that is used when primary evidence of 
citizenship is not available. In addition, the statute requires that 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. We stated that 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, 
but that 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). However, as we

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explain in further detail in the response to comments below, States may 
now verify citizenship for naturalized citizens using the Department of 
Homeland Security's Systematic Alien Verification for Entitlements 
(SAVE) Program, subject to DHS SAVE program requirements, including but 
not limited to a Memorandum of Understanding (MOU) authorizing the use 
of SAVE for naturalization verification purposes. This data 
verification will be considered secondary evidence of citizenship and 
must be accompanied by a document to verify the individual's identity. 
Therefore, it is appropriate to permit individuals born outside the 
U.S. who were not citizens at birth to submit either primary or 
secondary evidence of citizenship. We have also modified the affidavit 
process to permit naturalized citizens to submit an affidavit verifying 
their citizenship status in rare circumstances. The remaining documents 
in the third and fourth tiers will not be applicable to naturalized 
citizens because they require that the document show a U.S. place of 
birth. Similarly, citizens born in the U.S. will not be able to use 
several documents such as the Certificate of Naturalization or a data 
verification with the SAVE Program.
    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. A delayed birth record document that is recorded at or 
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 for each of the territories and can be found in the July 
12, 2006 interim final rule with comment period.

Third Level of Evidence of Citizenship

    In the July 12, 2006 interim final rule with comment period, we 
stated that 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, and the applicant 
or recipient alleges birth 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 be consistent.

Fourth Level of Evidence of Citizenship

    In the interim final rule with comment period, we stated that 
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, secondary and third level evidence are not available. 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). With the exception of the affidavit, fourth level 
evidence consists of documents established for a reason other than to 
establish U.S. citizenship that show a U.S. place of birth. The U.S. 
place of birth on the document and the application must be consistent. 
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.
    In the interim final rule with comment period, we also explained 
the affidavit process. We stated that affidavits should ONLY be used in 
rare circumstances and by individuals declaring to have been born in 
the United States. As discussed in more detail below in the response to 
comments, we have modified the policy with respect to naturalized 
citizens. We have modified the policy to permit naturalized citizens to 
utilize the affidavit process. While we believe that electronic 
verifications with the SAVE Program will eliminate the need for many 
naturalized citizens to utilize the affidavit process, we believe that 
such individuals should have a recourse available to them when their 
information cannot be located in the SAVE database. States should 
recognize that the inability of SAVE to verify U.S. citizenship does 
not necessarily mean that the individual is not a U.S. citizen; SAVE 
may be unable to determine that certain naturalized citizens, including 
those who naturalized more than thirty years ago, those who changed 
their names, or those who no longer remember their alien registration 
number, are naturalized citizens. In such cases, States should explore 
other alternatives included in these regulations to determining 
citizenship.
    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 is not available, 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 is unavailable. The 
affidavits must be signed under penalty of perjury.
    We added 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), meet the statutory 
requirements of section 6036 of the DRA.
    We included 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

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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.
    In the final regulations we added a new paragraph (g) that 
describes the use of identity affidavits for disabled individuals in 
residential care facilities.
    We also added a new paragraph (h) (formerly (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 added a paragraph (i) (formerly (h)) that describes documentary 
evidence. We specified 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 database. The copies maintained in the case file may be 
electronic records of matches, or other electronic methods of storing 
information.
    Moreover, we specified 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 specified in paragraph (j) (formerly (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 (k) (formerly (j)), we described the 
reasonable opportunity to submit satisfactory documentary evidence of 
citizenship and identity. We specified 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 solicited comments and suggestions on several areas of the new 
regulations. We asked the public to identify 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. We also 
solicited comments as to whether the number of documents accepted for 
proof of citizenship and identity should be limited. Finally, we 
solicited comments as to whether individuals would have difficulty 
proving citizenship and identity if only primary or secondary level 
documents were permitted. Many commenters responded to this request. 
Our responses and final policies are included in this preamble.

III. Analysis of and Responses to Public Comment

    We received over 1,400 timely items of correspondence that raised 
many different issues. Many commenters represented State agencies, 
medical societies, advocacy groups, hospital associations, and law 
firms. The remaining comments were from private citizens. A summary of 
the major issues and our responses follow:
    Comment: Many commenters acknowledged their agreement with the 
requirement that only citizens and specific immigrant populations be 
eligible for Federal public benefits, including Medicaid. However, one 
commenter requested that CMS clarify that the policies set forth in the 
July 12, 2006 interim final rule did not change Medicaid-eligibility 
requirements but rather added a requirement that States verify 
citizenship. The commenter noted that he has witnessed significant 
confusion within the immigrant community. He stated that many non-
citizen Medicaid recipients who fall into one of the eligible 
immigration statuses believe that they are no longer eligible for 
Medicaid.
    Response: We agree with the commenter. The rule did not change 
Medicaid eligibility requirements. As we stated in the interim final 
rule with comment period, this new provision effectively requires that 
the State obtain satisfactory documentation of a declaration of 
citizenship (see 71 FR 39215).
    We noted from several of the commenters' letters that many 
individuals are unclear about whether these new requirements apply only 
to citizens or to citizens and individuals in a satisfactory 
immigration status. We would like to clarify that these requirements 
only impact individuals who declare themselves to be U.S. citizens. 
Individuals who declare themselves to be aliens in satisfactory 
immigration status follow the procedures under Sec.  435.406(a)(2).
    Comment: Many commenters suggested that CMS revise the regulations 
to permit applicants and recipients to submit copies of the required 
documents. The commenters noted that it is often difficult, expensive, 
and time-consuming to get originals or certified copies of many of the 
required documents. One commenter noted that individuals would not be 
able to mail in certain documents. The commenter gave the example that 
an individual could not mail in a driver's license and continue to 
legally drive. In addition, many commenters expressed concern that the 
process of procuring original documents would be exceptionally 
difficult for semi-literate and non-English speaking applicants, 
potentially resulting in many eligible individuals choosing not to 
apply or reapply for Medicaid.
    One commenter stated that requiring originals or certified copies 
violates the 2006 edition of the Federal Civil Judicial Procedure and 
Rules, which states that duplicates are admissible to the same extent 
as an original unless there is a genuine question raised as to the 
authenticity of the original.
    The commenters also stated that requiring original documents 
contradicts CMS' stated position that States should ease application 
processes by allowing and encouraging mail- and phone-in applications. 
Most commenters noted that if required to submit original documents, 
applicants or recipients would make unnecessary visits to the State 
Medicaid Agency office to reduce the risk of losing original documents 
in the mail or during the handling process. The commenters noted that 
these trips could be difficult for applicants and recipients to make 
due to employment, transportation, and financial constraints. Several 
commenters remarked that this was of particular concern in States with 
large rural areas where many applicants and recipients

[[Page 38667]]

live exceptionally far distances from any State Medicaid office. The 
commenters stated this would be an unnecessary burden and one that 
could be avoided by permitting individuals to submit copies of the 
necessary documents. The commenters suggested giving eligibility 
workers the option of requiring original versions of the documents if 
they believe the copies submitted are questionable.
    In contrast, one commenter stated that it is important that 
documents be originals or copies certified by the issuing agency. The 
commenter stated that originals and certified copies better ensure an 
applicant's citizenship because these documents are more difficult to 
falsify.
    Response: We understand from the commenters that requiring 
applicants and recipients to submit original or certified copies of 
documents is more cumbersome than accepting copies. However, we do not 
agree that this additional burden outweighs the importance of States 
being able to verify that these documents are valid. We note that it is 
easier for an individual to falsely manufacture a document if it is not 
required to come from the issuing agency, and therefore, requiring 
originals or certified copies helps protect the integrity of the 
Medicaid program. In addition, we note that Medicaid coverage 
represents a value of thousands of dollars for a covered family. We do 
not believe the burden described by the commenters is unreasonable for 
determining eligibility for such a benefit.
    In addition, Federal agencies generally require original or 
certified copies of documents to establish eligibility for benefits. 
For instance, the Social Security Administration requires original 
documents or certified copies prior to establishing eligibility for 
benefits (see GN 00301.015 Acceptance of Evidence of the SSA's Program 
Operations Manual System (POMS)); the Department of State requires 
original documents or certified copies prior to issuing a passport.
    While we recognize that many individuals are hesitant to submit 
these documents through the mail, we note that they are still permitted 
to submit them in person to be photocopied by the State Medicaid 
Agency. State Medicaid Agencies often outstation workers to various 
points in the community, such as in hospitals and clinics. These 
eligibility workers are permitted to accept citizenship and identity 
documentation which they can then send to the State for approval. In 
addition, States are encouraged to utilize electronic data matching, 
which may obviate the need for an applicant/recipient to submit paper 
documentation.
    In response to the commenter who stated that this requirement 
violates the Federal Civil Judicial Procedure and Rules, we are not 
certain whether the commenter was referring to the Federal Rules of 
Civil Procedure or the Federal Rules of Evidence. In any case, both 
sets of rules apply to courts of law and are not applicable in this 
instance.
    Comment: Many commenters agreed with CMS' policy to allow States to 
cross-match data on public benefit recipients. Some commenters 
requested that CMS delineate the process by which an individual who has 
already provided proof of citizenship in one State should be precluded 
from providing this information again in another State.
    Response: Ultimately, each State is responsible for having verified 
the citizenship of individuals receiving coverage under its State plan. 
In keeping with current policy for applications, when a person moves to 
another State, he or she must submit an application for Medicaid in 
that State and meet all eligibility requirements. States may establish 
partnerships with each other that allow them to share citizenship data. 
However, States must be able to produce a copy, electronic copy or 
other conclusive evidence of the original documentation used to 
determine an individual's citizenship. Therefore, if a State accepts 
evidence of citizenship or identity from another State, it should 
request a copy or electronic copy of the documentation reviewed by 
another State to keep in its own files. We note that a determination 
made by one State is not binding on another. Each State is responsible 
for the accuracy of its eligibility determinations. If a State is not 
confident that the information provided by another State is accurate, 
it must request that the individual resubmit the necessary 
documentation.
    Comment: Several commenters recommended that CMS work with States 
to establish an electronic system to record and cross-check citizenship 
information. One commenter requested that this system be available via 
the internet. The commenters also requested that CMS not require States 
to print paper copies of electronic matches in order to minimize the 
burden of creating and maintaining additional paperwork. One commenter 
also stressed that CMS must ensure privacy and confidentiality 
protections to applicants/recipients.
    Response: While we are very interested in this suggestion, we 
currently do not have such a system developed for use. However, several 
Federal agencies, including CMS, are working with the National 
Association for Public Health Statistics and Information Systems 
(NAPHSIS) on the Electronic Verification of Vital Events (EVVE) 
databank. EVVE contains birth record information for all participating 
States. States would be able to electronically verify birth information 
for births in their own State and within other States. If and when this 
databank becomes available, we will consider its application to these 
requirements. In the meantime, we strongly encourage States to develop 
methods of working together to achieve efficient, effective ways of 
verifying citizenship and identity.
    In response to the request that CMS not mandate States to print 
paper copies of electronic matches, we emphasize that while States must 
be able to produce a copy of the documentation used to determine an 
individual's citizenship, the copy may be in electronic format.
    We also note that applicants and recipients will receive all 
privacy and confidentiality protections required under the law (see 42 
CFR 431 subpart F).
    Comment: Several commenters requested that CMS make the following 
databases available for data matches or verifications: Public 
Assistance Recipient Information System (PARIS), U.S. Department of 
Veterans Affairs data files, Social Security Administration's SS5 
database (Numident), SAVE database, Indian Health Services databases, 
and the State Attorney General's databases. One commenter requested 
that CMS permit States to use any governmental database that verifies 
citizenship to match against a birth certificate in order to verify 
citizenship.
    Several commenters suggested that CMS require State Medicaid 
agencies to cross-match data with the State mental health authority 
since individuals with serious mental illnesses may have difficulty 
obtaining the necessary documents. One commenter requested that CMS 
allow States to verify citizenship by cross-referencing with State 
agencies that handle food stamps, child support, corrections, juvenile 
detention, motor vehicle, or child protective services.
    Response: After reviewing the databases above, we have determined 
that States may, with DHS approval, utilize SAVE to verify citizenship 
for naturalized citizens. A verification with the SAVE Program will be 
considered secondary evidence of citizenship. Since SAVE does not 
maintain photographs, States will be required to supplement a data 
verification with

[[Page 38668]]

SAVE with a form of identity listed under the regulations at Sec.  
435.407(e).
    In general, the databases recommended by commenters did not contain 
information that could reliably establish citizenship. For instance, 
the Child Support program does not maintain citizen information and 
section 454(26) of the Act requires State Child Support programs to 
have in effect safeguards on access to and use of information that is 
collected. Other statutory language restricts what authorized 
information can be provided to what authorized program for what 
authorized purpose (i.e., sections 453 and 463 of the Act). In 
addition, neither the Department of Veterans Affairs databases nor the 
IHS Data Warehouse necessarily store citizenship information. PARIS 
reports on what public benefits an individual receives for purposes of 
identifying cases of duplicate coverage of benefits. The only 
information in PARIS that could be of use is data on SSI enrollment. 
However, since States have access to SSA's State Data Exchange system 
to check for SSI enrollment, PARIS would be unnecessary for data 
matches.
    SSA currently makes available to States through the Numident 
database information on whether a particular social security number is 
valid and issued to the person named on it. This is not sufficient 
evidence of citizenship since non-citizens may have a social security 
number and the information provided does not personally identify the 
individual. Although the Numident database may contain additional 
information for individuals with a social security number that 
establishes citizenship, this information is not generally available to 
States. While States may be able to negotiate with the SSA for what 
information they are granted access to, CMS does not have the authority 
to grant access to additional fields in SSA's Numident database.
    Although several commenters requested that we approve State 
Attorney General's databases, we were not able to determine exactly 
what these databases are or what information they contain. Therefore, 
we are not approving their use at this time. However, these databases 
may meet the requirements for verifying identity through a cross match 
with a Federal or State governmental, public assistance, law 
enforcement, or correction agency's data system under Sec.  435.407(e) 
and Sec.  436.407(e).
    As for matches with the Food Stamps database, the Food Stamps 
program does not collect citizenship information as a condition of 
eligibility. The Food Stamp program issued a letter to its regional 
directors on May 12, 2006 reiterating Food Stamp policy that the Food 
Stamp program does not require verification of citizenship except when 
a client's statement of United States citizenship is questionable or 
when a State has mandated verification of citizenship. Therefore, the 
food stamps database does not contain sufficient evidence of 
citizenship. However, as stated in the interim final rule with comment 
period and per the regulations at Sec.  435.407(e)(2) (formerly Sec.  
435.407(e)(10)), States may use cross matches with the food stamps 
database to verify the identity of an individual.
    With respect to data matches with the department of motor vehicles, 
as stated in the regulations at Sec.  435.407(a)(4) and Sec.  
436.407(a)(4), a State may utilize data matches with the department of 
motor vehicles if the State requires proof of U.S. citizenship prior to 
the issuance of a driver's license or obtains a social security number 
from the applicant and verifies before issuance of the license that the 
number is valid and assigned to the applicant who is a citizen. At this 
time, we are not aware of any State that makes providing evidence of 
citizenship a condition of issuing a driver's license and includes 
evidence that the license holder is a citizen on the license or in a 
system of records available to the Medicaid agency. As stated in the 
regulations, CMS will monitor compliance of States implementing this 
provision. We note that the process the State uses to verify 
citizenship must comply with the statutory provision in section 6036 of 
the DRA.
    Child support, corrections, juvenile detention, or child protective 
services databases may be used to verify identity but cannot be used to 
verify citizenship. We cannot ensure that the owners of these systems 
either (1) verify citizenship, or (2) verify citizenship using 
comparable criteria to this rule. Therefore, we are unable to approve 
their use at this time.
    Comment: One commenter stated that requiring States to match files 
for individuals who only have third or fourth levels of evidence as a 
check against fraud is contrary to the requirement that this be a one-
time activity. One commenter specifically stated that States should not 
be required to double-check SSNs. They stated that since they already 
require SSNs on the application to verify income eligibility, any non-
matches would already have been caught in this process.
    Response: After considering the commenters' concerns, we believe 
that several commenters may have misunderstood the requirement. We did 
not change the regulations to require States to match SSNs for 
applicants and recipients who submitted third and fourth tier 
documents. We agree that this would duplicate another part of the 
application process. We intended for States to utilize new electronic 
means of verifying citizenship and identity as they become available. 
We stated that we encourage States to use automated capabilities to 
verify citizenship and identity of Medicaid applicants and that 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. We also stated that CMS 
will make available to States necessary information in this regard when 
such capabilities become available. We emphasize that this only applies 
to new applicants. It is not necessary for States to electronically 
verify the citizenship of recipients who used third and fourth tier 
documents in the past. We note that this provision is unlikely to apply 
to recipients submitting documentation at redetermination since this 
provision is a one-time action and all redeterminations affected by 
this provision should be complete by July 1, 2007. Since CMS has not 
issued instructions to States requiring States to utilize specific 
electronic databases and does not expect to do so prior to July 1, 
2007, we do not believe this requirement will have any effect on 
recipients required to submit documentation at redetermination.
    Comment: One commenter requested that CMS require States to utilize 
electronic data matches to increase efficiency and lessen the burden on 
Medicaid recipients and applicants. One commenter asked that States be 
required to utilize all available electronic matching data before 
asking an individual to submit original versions of paper documents.
    Response: Most States have already implemented data matching or 
verification as a method of verifying citizenship and identity and many 
others have expressed an interest in doing so. We encourage States to 
utilize electronic matching; however, each State is best suited to 
understand its own capabilities for data matching and we do not believe 
it is appropriate for us to require States to use electronic data 
matching prior to asking for paper documents. There exists variation in 
the resources and technical capabilities available to each State, and 
some electronic matching may require additional State resources and 
expenditures that are not currently available to the State.

[[Page 38669]]

    Comment: One commenter requested that CMS defer to the States on 
how long each State should retain the citizenship documentation 
records. One commenter requested that State Medicaid agencies retain 
this information indefinitely.
    Response: We agree with the commenter who stated that CMS should 
defer to the States on how long citizenship documentation records 
should be maintained, as long as that time period is at least 3 years, 
consistent with the regulations at Sec.  431.17 and 45 CFR 74.53. 
However, we do not agree that we should require States to maintain this 
information indefinitely. States are in a better position to decide 
what record retention schedule works best with their systems and 
resources.
    Comment: One commenter requested that CMS permit States to use any 
information already in possession of the State Medicaid office that 
verifies citizenship. The commenter stated that there would have been 
no incentive in the past for an individual to submit fraudulent 
information on citizenship and, therefore, the determination should be 
considered valid even if the office cannot document how the information 
was obtained.
    Response: As we stated in the interim final rule with comment 
period, States are responsible for verifying the authenticity of the 
documents used to establish citizenship and identity. States may use 
information already contained in the Medicaid file if the State can 
verify that an original or certified copy of the documentation was 
originally reviewed and a reproduction of the document is in the file. 
There should be evidence in the file that the eligibility worker 
reviewed an original or certified copy. A State is at risk for losing 
FFP if it cannot provide sufficient evidence to assure that originals 
or certified copies were reviewed.
    Comment: Many commenters agreed with CMS' policy to allow 
presumptively eligible individuals to maintain Medicaid coverage while 
they locate and submit the required documentation. However, several 
commenters requested that CMS clarify in the final rule which groups 
are considered presumptively eligible and which are not. One commenter 
requested that CMS consider presumptively eligible individuals 
recipients of Medicaid and, thus, delay citizenship verification until 
the next period of redetermination. The commenter noted that these 
groups are in need of expedited critical services and therefore should 
not risk facing any delay in coverage.
    Response: Individuals who receive Medicaid because of a 
determination by a qualified provider under sections 1920, 1920A, or 
1920B of the Act are considered presumptively eligible if the State has 
elected to include that option in its State plan. Section 1920 refers 
to pregnant women; section 1920A refers to children; and section 1920B 
refers to certain breast or cervical cancer patients. However, within a 
certain time period, presumptively eligible individuals are required to 
apply for regular Medicaid under sections 1920(c)(3), 1920A(c)(3), and 
1920B(c)(3) of the Act, respectively. Once this application occurs the 
standard eligibility rules apply, including the requirement that the 
individual verify a declaration of U.S. citizenship.
    Comment: Many commenters requested that CMS modify its policy to 
allow otherwise-eligible applicants to receive benefits once they 
declare they are a citizen. The commenters did not agree with allowing 
current recipients an opportunity to produce the documents while still 
being covered by Medicaid when otherwise-eligible applicants are 
required to produce documentation before the start of coverage. 
Instead, the commenters suggested that CMS allow applicants who meet 
all other criteria for Medicaid eligibility to receive coverage during 
the reasonable opportunity period. If the applicant is unable to 
produce the documents within the defined period, the State could then 
rescind Medicaid coverage.
    Commenters noted that by not providing new applicants with a 
``grace period'' for submitting the required documentation, CMS will 
create significant delays for those seeking health care coverage. 
Several commenters noted that the gaps in coverage caused by these 
delays may have consequences that are more costly, such as affected 
individuals seeking care in hospital emergency departments. The 
commenters emphasized that the cost of emergency care always exceeds 
the cost of preventive care.
    In addition, several commenters stated that treating Medicaid 
recipients and Medicaid applicants differently was prohibited by 
Federal Medicaid law. One commenter stated that because this provision 
could inhibit an eligible U.S. citizen from receiving coverage under 
Medicaid, CMS was violating a provision of the Medicaid statute that 
prohibits CMS from approving State Medicaid plans that impose ``any 
citizenship requirement which excludes any citizen of the United 
States'' as a condition of eligibility for the program (see 42 U.S.C. 
1396a(b)(3)). One commenter stated that this regulation violated 
Federal law by contradicting section 1137(d)(4) of the Act.
    The commenters urged CMS to reconsider the new regulations as they 
pertain to new applicants, especially in the case of pregnant women, 
children, parents, and persons with disabilities. As an alternative, 
one commenter recommended that CMS permit States that administer 
separate State Children's Health Insurance Programs (SCHIP) to be 
expressly permitted to enroll children in the separate programs pending 
submission of necessary documentation.
    Response: In response to the commenters who urged CMS to reconsider 
applying this provision to pregnant women, children, parents, and 
persons with disabilities, we note that Congress exempted many groups 
from these requirements. CMS does not have the authority to exempt 
additional groups. As stated earlier, however, in some cases, 
presumptive eligibility might apply to pregnant women and children. 
Persons with disabilities may be eligible for either Medicare or 
disability benefits under sections 223 or 202 of the Act, and by virtue 
of receiving such benefits, would be exempt from the citizenship 
documentation requirements.
    In response to the commenters who stated that CMS may not treat 
applicants and recipients differently, we note that Congress 
specifically stated in section 1903(i)(22) of the Act that the Federal 
share of Medicaid will not be available to States unless they can 
obtain documentation of citizenship consistent with section 1903(x) of 
the Act. Thus, because a State would not be entitled to receive Federal 
Financial Participation (FFP) for their expenditures unless 
documentation on the applicant is received, a State is not required to 
provide Medicaid to an individual who has failed to provide 
documentation of citizenship or nationality. (See Harris v. McRae, 448 
U.S. 297 (1980)). We also note that section 6036(b) of the DRA 
addressed how the statute would apply to initial applicants versus 
those seeking redeterminations of eligibility on or after the effective 
date of the requirements (July 1, 2006).
    We do not believe the regulations violate section 1903(b)(3) of the 
Act. First, Congress has required documentation of citizenship in 
sections 1903(i)(22) and 1903(x) of the Act, and these provisions must 
be read in concert with the remainder of Title XIX. Second, the 
citizenship documentation requirements are better viewed as procedural 
requirements, rather than as substantive limitations.

[[Page 38670]]

The documentation requirement does not place any substantive limit on 
the classes or types of citizens that may receive Medicaid.
    Section 1137(d)(4) is not applicable, because it applies only to 
individuals who are not citizens or nationals of the United States who 
declare satisfactory immigration status. The citizenship documentation 
requirements under section 6036 of the DRA apply to citizens and 
nationals of the United States, and not to individuals declaring to be 
in a satisfactory immigration status.
    In order to ensure that unnecessary delays do not occur, the State 
should ensure that applicants are aware of these requirements at the 
time of application along with any other documentation requirements and 
ensure them a reasonable opportunity to produce the documents just as 
applicants must do to establish other factors of eligibility such as 
proof of income or resources. States must make applicants aware that 
once they have been determined to be eligible and have provided 
documentation verifying citizenship, Medicaid eligibility is granted 
back to the date of application or to the beginning of the month in 
which the application was received. In addition, under section 
1902(a)(34) of the Act and 42 CFR 435.914, if an individual would have 
been eligible for State Medicaid assistance at the time care and 
services were furnished (or --at State option--during the month in 
which care and services were furnished), retroactive coverage may be 
made available beginning with the third month prior to the month of 
application. In other words, once the individual has proven his or her 
citizenship, eligibility will be conferred on that individual 
retroactive to up to 3 months before the month of application, if the 
individual is found to be eligible during that prior period or part 
thereof.
    Under Title XXI, the State cannot make eligible for SCHIP an 
individual who is potentially eligible for Medicaid. Under the 
regulations at 42 CFR 457.350(f)(1), a child who is potentially 
eligible for Medicaid cannot be found eligible for SCHIP unless and 
until a completed Medicaid application for that child is denied, or the 
child's circumstances change. A Medicaid application is not complete 
without submission of all documentation, including documentary evidence 
of citizenship and identity. An incomplete application may be denied; 
however, because the application was incomplete, this denial does not 
meet the criteria that a completed Medicaid application for the child 
is denied. Therefore, it is not permissible under the regulations to 
enroll a potentially Medicaid-eligible child into a separate SCHIP 
program pending submission of citizenship and identity documents 
necessary to complete the Medicaid application process.
    Comment: Several commenters requested that the reasonable 
opportunity period be at least 90 days in length. One commenter stated 
that many of the required documents take at least 6 weeks to receive, 
including a U.S. Passport, and that it is unreasonable to require 
applicants and recipients to produce these documents in less time than 
it regularly takes to receive the documents.
    Response: We specified in the interim final rule with comment 
period that the reasonable opportunity period should be consistent with 
the State's standing 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 extensions to 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