August 4, 2006

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attention: CMS-2257-IFC,
P.O. Box 8017
Baltimore, MD 21244–8017

August 4, 2006

Medicaid Program; Citizenship Documentation Requirements
Interim Final Rule

The Child Welfare League of America (CWLA) submits the following comments on the interim rule to implement section 6036 of the Deficit Reduction Act of 2005 (DRA), which was published in the Federal Register on July 12. Section 6036 governs the citizenship documentation requirements as they apply to children in our nation’s foster care system. Specifically, CWLA is concerned about the application of the rule to children in foster care (§435.1008), and encourage CMS to add an exemption at 42 CFR 435.1008 for foster children.

CWLA represents nearly 900 public and private nonprofit, child-serving member agencies across the country. Our members have responsibility for many of the 523,000 children in foster care in this country as well as many of the 50,000 adoptions that take place each year.

CWLA reiterates its comments issued earlier this year voicing concern over the failure to exempt foster children from the new citizenship documentation requirements. These comments were made pertaining to CMS’ initial guidance and now extend to the interim final rule, which continues to mandate unfair and unrealistic requirements to be met by one of the most vulnerable groups in our society – abused and neglected children living in foster care. These new requirements to prove U.S. citizenship or nationality and identity will create a critical burden on foster children, foster families, and an already overburdened child welfare system. Furthermore, the new requirements are duplicative in the case of foster children, as according to federal law, foster children already must have documented citizenship to receive Title IV-E assistance.

The unnecessary burden of duplicating proof of citizenship, subject to stringent new requirements that only original or officially certified copies of birth certificates be accepted, could result in the delay or denial of important health care to children in foster care, many of whom enter state custody in poor health. If Medicaid is not available due to these new mandates and the child welfare agency is then forced to cover the cost of care normally paid by Medicaid, the end result will be a shift of financial resources from one part of the child welfare system to another, potentially denying needed prevention, intervention and support services in other parts of the child welfare system.

We strongly recommend that CMS carefully evaluate the impact of these regulations in light of the compelling health care needs of the foster care population. As we have stated in the CWLA Standards for Health Care Services for Children in Out-Of-Home Care:

“Children in foster care today demonstrate a marked increase in the prevalence of chronic health problems. The frequency of these problems is most likely related to health conditions existing prior to placement. The management of these conditions requires the commitment of extensive time by both the agency responsible for the child and the physician. It also demands the expertise of many disciplines and thus requires the coordination of efforts of a variety of professionals…Once a child with a chronic health problem is in placement, the responsibility for the care of these conditions shifts from the parents to the child welfare agency…”

In addition, as the American Academy of Pediatrics noted in 2002, “Compared with children from same socioeconomic background, they
[children in foster care] have much higher rates of serious emotional and behavioral problems, chronic physical disabilities, birth defects, developmental delays and poor school achievement.” 1Other research has shown that children in foster care have 8-11 times the levels of service use of other Medicaid-enrolled children. 2

Research also suggests that access to care, especially in the first days of placement, is important. A process that hinders, denies, or slows down access to such needed services can only serve to worsen the situation for children who have already suffered from abuse and neglect. Nearly 250,000 children in care have a goal of being reunified with their families, and access to health and mental health care, both for the family and the child is typically an essential component of reaching that goal successfully.

Yet despite the pressing health care needs of foster children, which are unique in both quantity and quality compared to children outside of the child welfare system, these new citizenship documentation regulations will further impede access to health care, including access to critical mental health services, that may already be limited and fragmented. Rather than improving the necessary coordination of efforts between Medicaid and child welfare services to ensure that children receive adequate and medically necessary health care services that states are obligated to provide, these new requirements set forth barriers to such collaboration.

Approximately 65 percent of children in care reside with non-relative families or are in institutional or group settings. Family history and documentation of citizenship and identity may not be readily available for these children. In cases where children are in placements with relatives, the challenges for these relative caregivers are already high. Establishing and re-establishing access to Medicaid will be one more burden on a group of family caregivers who are already being called upon to provide a critical source of help for these children.

Over 150,000 of these 523,000 children in foster care are age five or younger. We believe it is safe to assume they will not have a passport, which is the primary document called for by CMS to establish both identity and citizenship. As one of our member agencies informed us:

“Applying [this] Medicaid application and eligibility determination process to foster children who have been removed from the custody of abusive parents does not make any sense…Abusive parents are not always the most cooperative parents. The lack of cooperation will pose problems for many IV-E children in securing the necessary proof of citizenship [to satisfy the new CMS requirements].”

In addition, for the more than 20,000 youth who leave or “age-out” of the system each year, this clearly creates an additional barrier to health care, as many older youth will not have access to the necessary documents. These youth are faced with enormous challenges including already limited access to services. To truly make a transition to independence and adulthood, access to supports for these foster youth needs to be made easier, not more difficult.

CWLA urges you to address this situation by recommending that foster and adoptive children be exempt from these requirements. Children who receive federal IV-E foster care payments are categorically eligible for Medicaid, and children not determined as eligible for Title IV-E but in foster care are covered by Medicaid in virtually every state. Children in foster care do not make an application for Medicaid due to their status as foster children. CWLA believes that this reality places children in care in a situation similar to children and adults who are eligible for the Supplemental Security Income (SSI) program, a group of Medicaid recipients you have now clarified as being exempt from the citizenship identity mandates.

CWLA urges CMS to consider the fact that foster children must have their citizenship documented to receive Title IV-E assistance. Furthermore, many states’ systems make this citizenship determination for all children who enter foster care, not just those who are IV-E eligible. In regard to the narrower issue of establishing identity, we also highlight the fact that these children are considered wards of the state and as a result a court in that state has recognized that child’s identity.

If CMS fails to make this exemption, CWLA then urges the Center to state in written guidance that children entering the foster care system be considered as current recipients, rather than applicants, thereby allowing them to receive immediate Medicaid services while child welfare agencies attempt to obtain the necessary documentation of citizenship within a “reasonable opportunity period,” as specified in the statute. We understand that CMS officials have offered this definition in a public forum of state child welfare and Medicaid directors. We also want to assure that youth 17 and younger are treated as minors, rather than the current proposals that apply to age 16 and younger, if these overall exemptions are not carried out.

It is our hope that at the conclusion of your review of the comments offered in response to this interim rule you will remedy this situation. We thank you for your attention to this matter and look forward to working with you in a way that can assist these children in obtaining the crucial health services they need.


Shay Bilchik
Child Welfare League of America


  1. Health Care of Young Children in Foster Care.” American Academy of Pediatrics Committee on Early Childhood, Adoption and Dependent Care. Pediatrics Vol. 109 No. 3 March 2002.
  2. Harman, et al. Archives of Ped Adol Medicine, 154(11): 2000; Halfon, et al.Pediatrics, 89(6): 1992.