Citizenship Documentation Deficit Reduction Act of 2005 (2/06) Effective 7/1/06 for new applicants; at the next annual review for recipients Thus everyone by 7/1/07 Interim Final Regulations published July 12, 2006 (71 Fed. Reg. 39,214) Threatens federal matching funds (1396b)

Prior Law People claiming to be citizens self-attest under penalty of perjury States authorized to ask for documentation when they deem it necessary 2005 OIG report: no problems, no evidence of fraud

New Requirement Self-attestation no longer sufficient Must document both citizenship and identity in order to obtain or keep Medicaid eligibility DRA and regulation set up limited types of documentation and time limits to produce it States still have options and can limit damage

Exemptions Medicare beneficiaries SSI recipients in states where SSI eligibility automatically establishes Medicaid eligibility (not 209b) Children who received federally assisted foster care or adoption assistance (Title IVE) – December clarification

General Provisions All documents must be originals or copies certified by the issuing agency. NOT photocopies or notarized copies Recipients must have reasonable opportunity that lasts as long as they are making a good faith effort. Applicants must also have a reasonable opportunity but it lasts only 90 days, subject to good faith effort exception, and state assistance to those granted the exception.

Primary proof of both factors Passport Certificates of citizenship or naturalization Drivers license where state demands proof of citizenship (none exist) SDX computer match – for states where Medicaid does not flow automatically from SSI (209b)

Proof of Citizenship Heirarchy – lower only if nothing higher Secondary – birth cert, official military record of service showing place of birth, adoption decree showing place of birth 3 rd level -- Hospital record of birth or insurance document showing place of birth, but only if created at least 5 years before first applying for Medicaid

Citizenship – cont. 4 th Level – federal or state census record showing citizenship or U.S. place of birth, tribal records, medical or nursing home records created at least 5 years prior to initial Medicaid app Last resort – affidavits from people with knowledge of birth, one not a relative, and both can prove their own citizenship

Proof of identity Official ID cards (state, tribal) with photo or detailed description (e.g., drivers license) For children under 16, affidavit of parent or guardian, but only if affidavit not used for the citizenship requirement

Bell v. Leavitt Three types of claims: A) recipients should be exempt; B) the procedures violate due process by excluding types of evidence and imposing unfair time limits; C) foster and adopted children (and some others) should not be subject to the new rule Filed in late June 2006; new Interim Final regs July 12 exempting SSI and Medicare

Ruling Claims A and B dismissed. Claim C likely to win but referred for hearing on harm Plaintiffs moved to reconsider on Claim A – motion is still pending Claim C mooted by congressional fix for Title IVE kids Claim B needs to be brought in states

Standing and Harm Very hard to show people being hurt or even threatened with hurt Needed -- People eligible prior to July 1, 2006, being threatened with loss of Medicaid or actually losing it; social service providers with first hand knowledge of this

Possible state cases States implementing the documentation rules to deny or delay applications or terminate recipients, especially if even more difficult than federal rules require Training, sample pleadings and briefs, co- counseling help available

Contacts Bell attorneys: Shriver Center; National Health Law Project; National Senior Citizens Law Center; Health and Disability Advocates; Goldberg, Kohn (pro bono). Coordinated media strategy: Families USA DC advocacy: Center on Budget and Policy Priorities, AARP, many others John Bouman, Shriver Center, Bell pleadings: