Howard E. Bogard
Since 1986, Medicaid applicants and recipients have been required to confirm their United States citizenship or legal immigration status by "checking a box" on a form. Citing growing concerns over illegal immigration's financial impact on the Medicaid program, beginning July 1, 2006 the federal Deficit Reduction Act requires persons applying or reapplying for Medicaid to provide proof of identity and citizenship or immigration status. The Congressional Budget Office has estimated that the new requirement could save Medicaid $735 million in fraudulently acquired benefits over the next 10 years. However, critics argue that an estimated 3 to 5 million low-income people could lose their current Medicaid benefits because they are unable to produce the appropriate documentation.
The new law allows for a variety of ways applicants and re-applicants can document citizenship status and personal identity. The law adopts a hierarchical approach already in use by other government programs which document evidence of citizenship and identity. If an applicant or recipient presents evidence from the listing of "primary documentation," such as a passport, no other information will be required. When such evidence cannot be obtained, the state will look to "secondary documentation," such as a birth certificate, to demonstrate citizenship and a current driver's license or state identity document with the individual's picture to demonstrate identity. Once citizenship has been established, it need not be documented again with each eligibility renewal unless later evidence raises a question. The Alabama Medicaid Agency has developed a handout that can be used to determine what types of documentation will be accepted as proof of citizenship or legal immigration status. The document can be obtained at http://www.medicaid.state.al.us/documents/apply/2B-Qualifying/2B_CandI2_071706-v2.pdf.
If primary or secondary forms of documentation cannot be obtained, proof of citizenship can be demonstrated by a written affidavit, signed under penalty of perjury, from two citizens, one of whom cannot be related to the applicant or recipient, who have specific knowledge of a beneficiary's citizenship status. Applicants or recipients must also submit an affidavit stating why the citizenship documents are not available. Affidavits are only expected to be used in rare circumstances. Medicaid Commissioner Carol Herrmann-Steckel has indicated that the Medicaid Agency will work with beneficiaries, such as senior citizens born at home without birth certificates and patients with mental illnesses, who may have difficulty providing the required documentation.
At the time of application or re-application, the state must give the individual a "reasonable opportunity" to present documents establishing United States citizenship and identity. An individual who is already enrolled in Medicaid will remain eligible if he or she continuously shows a good faith effort to present satisfactory evidence of citizenship and identity. However, applicants for Medicaid will not be enrolled in the program until they have presented the required documents.
Responding to criticism regarding the new law, the Centers for Medicare and Medicaid Services has recently exempted from the documentation requirements seniors and people with a disability who receive Medicare or Supplemental Security Income, since these beneficiaries have already satisfied similar documentation requirements. It is estimated that this exemption will apply to approximately 8 million Medicaid beneficiaries. However, according to Ron Pollack, executive director of Families USA, which is supporting a class-action lawsuit filed against HHS regarding the new rules, "Numerous other people who need healthcare the most and can't come up with the required documentation — such as foster children, the homeless and people who are the victims of natural disasters — may still lose Medicaid coverage and join the ranks of the uninsured." Critics also claim that it is not uncommon to find people in their 70s and 80s who lack birth certificates, particularly if they were born poor and in small towns. A report by the Kaiser Family Foundation found that the cost and complexity of obtaining or replacing original or certified copies of citizenship documents could also be a significant barrier to Medicaid coverage. According to the report, the cost for documentation, depending on the state, would range from $10 to $220.
The new law will impact approximately 900,000 Medicaid beneficiaries in Alabama. It is estimated that approximately 6 to 10 percent of these individuals may lose Medicaid benefits because they will not be able to produce the required documentation. Hospitals, however, are still required by law to provide emergency care for all, regardless of coverage. Further, "safety net hospitals" and other providers such as community health centers who treat patients regardless of insurance may see a decline in total reimbursement by treating patients that previously received Medicaid benefits.
Howard E. Bogard is a partner and co-chair of the Health Law Section of Burr & Forman LLP and exclusively represents healthcare providers in regulatory and corporate matters.