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MDCH delays implementation

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Issue 31, Summer 2006

MDCH delays implementation of federal requirement that Medicaid beneficiaries provide proof of citizenship and identity and seeks ways to minimize harm

Section 1903(x) of the Deficit Reduction Act (DRA) of 2005 (Pub. L. No. 109-171) requires states to obtain documentation of citizenship and identity for all citizens or nationals of the United States who apply for Medicaid or seek redetermination of Medicaid eligibility effective July 1, 2006. Despite the effective date in the law, Michigan, like many states, is unprepared to comply with this burdensome and harmful provision and will not begin implementing it until September 1st or later.

The provision was ostensibly designed to root out noncitizens fraudulently declaring citizenship to apply for Medicaid, it is likely to cause grave harm and injustice to many citizens who need and are eligible for Medicaid but who, for a variety of reasons, are unable to produce necessary documentation. Those who are most likely to be adversely affected by the new requirement include beneficiaries and applicants who have cognitive deficits and no involved family to assist in procuring necessary documents; low income older adults who never had birth certificates, passports, or other documentary evidence of citizenship; disaster victims who have lost important documents; and homeless persons who face serious difficulties in obtaining documentation of identity and citizenship. The provision will also impose significant new burdens on DHS staff.

On June 9, CMS issued long awaited guidelines to states about how to implement the new requirement. Unfortunately, the guidelines make the provision even more stringent than the law requires and create more confusion and uncertainty for both states and advocates. In its guidance letter, CMS created a four level hierarchy of acceptable documentation that states must use in verifying an applicant or recipient's citizenship status. Only if applicants or recipients demonstrate that they cannot obtain documents from the top two tiers, such as a passport or birth certificate, can the state accept what CMS considers less reliable evidence of citizenship. If individuals are unable to produce any of the forms of documentation set forth in the guidelines, and only in the rarest circumstances, are they permitted to rely on an affidavit from at least two individuals, at least one of whom is not related to the individual, who have personal knowledge of the events leading to the applicant's or recipient's claim of citizenship. Those providing the affidavits must provide proof of their own citizenship and identity and the applicant or recipient must provide an additional affidavit explaining why the documentary evidence does not exist or cannot be obtained.

Current recipients must be given a "reasonable opportunity" to obtain proof of citizenship and their benefits cannot be terminated as long as they are deemed to be making a good faith effort to provide the necessary information. New applicants, however, are specifically prohibited from obtaining Medicaid coverage until they have provided acceptable proof of citizenship.

The requirements discourages states from using available electronic data and requires state Medicaid agencies to duplicate the efforts of other governmental offices. It imposes a huge burden on DHS workers and new administrative costs for the state.

Like many states, Michigan is simply unprepared to implement the requirement. State officials were awaiting guidance from CMS before drafting the state policy and procedures but found the June 9 guidelines to create numerous new questions. DCH must now draft a proposed policy, publish it, and undergo a thirty day public comment period before the new requirements become effective. In addition, DHS staff will require extensive training about appropriate implementation of the new requirement.

State officials have stated repeatedly that they do not intend to create savings in the state Medicaid budget though the implementation of this proposal and are anxious to identify ways to minimize harm. Both DCH and DHS staff have been working with advocates from MPLP, the Center for Civil Advocacy, the Elder Law and Advocacy Section of the State Bar, and others to develop appropriate policies. Logan Dreasky of the DCH Medicaid policy staff recently advised the Governor's Long Term Care Supports and Services Advisory Commission that the policy would likely not be implemented before September 1 and could be delayed even longer.

A number of lawsuits have been filed challenging this DRA provision on a number of grounds. On June 28, 2006, a class action lawsuit against Mike Leavitt, Secretary of HHS, was filed in federal district court in Chicago challenging the new requirement. The suit was filed by the Sargent Shriver National Center on Poverty Law, a private lawfirm, Health and Disability Advocates, the National Health Law Project and the National Senior Citizens Law Center, For a copy of the complaint and other information on the lawsuit, go to,rootfolder~~23177,appview~~folder,id~~48317.

Although DHS issued an unfortunate L Letter to DHS staff (L-06-096) on June 26, 2006 directing them to begin requesting documentation of citizenship beginning August 1, Center for Civil Justice attorney Jackie Doig is working with the Department to rescind or at least clarify that L letter. The new L letter or clarification will instead instruct workers not to take any action with regard to this requirement until DCH has developed its new policy and DHS staff have received additional training.

Questions regarding this issue can be directed to Alison Hirschel (, Lisa Ruby ( or Jackie Doig (


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