July 27, 2007

The Honorable Michael O. Leavitt
Secretary of Health and Human Services
Hubert H. Humphrey Building
200 Independence Avenue, SW
Washington, DC 20201

Documentation of Citizenship and Legal Status for Children in Foster Care

Dear Secretary Leavitt:

The Child Welfare League of America (CWLA) is greatly concerned about the new guidance by the Administration in response to the 2006 Deficit Reduction Act (PL 109-362) and its potential negative impact on children, youth and families involved in the states’ child welfare system.

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.

The guidance creates a critical burden on state and local child welfare systems, children served by these systems and the families that care for them. We are concerned that guidance may have the effect of causing confusion and possibly delaying or denying health care for those children and their families who may not have easy access to the required documentation. Limiting access may also drain financial resources in the child welfare system when funds are diverted from needed care, prevention and treatment services to meet health care needs.

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. These new requirements will hinder that access and care while in foster care. There is a consistent and growing body of evidence that children in out-of-home care have greater health and mental health needs than other children. Research 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.

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/HHS to establish both identity and citizenship. At the other end of the age spectrum, for the more than 20,000 youth that leave or “age-out” of the system each year, we are clearly creating an additional barrier to health care. These youth are faced with enormous challenges including 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.

There is a clear need to address the situation facing children in the child welfare system due to these new Medicaid requirements. We endorse the recommendations of the American Public Human Services Association (APHSA) and the National Association of State Medicaid Directors (NASMD). In particular, we support:

  • The exemption of foster and adoptive children from these requirements as this would result in the most direct way to address the needs of this population.
  • The use of tribal enrollment cards and the enrollment process as this would impact on many tribal communities and their child welfare population.

If these changes are not included then we propose the following actions as a secondary response. Under Title IV-E children are already required to have documentation of their citizenship status. This new CMS/HHS guidance will require that state Medicaid agencies duplicate the documentation work of state child welfare. Children who are eligible for federal Title IV-E foster care – about half of the children in foster care – are automatically eligible for Medicaid coverage (mandatory Medicaid). The remaining children not eligible for federal IV-E foster care are covered at state option in most, if not all, of the fifty states.

  • We propose that children who have been determined as eligible for federal Title IV-E foster care be considered as having met the burden of citizenship and identifications. In addition, for those state systems that have established a process of determining alien status for the entire foster care population — both IV-E eligible and non IV-E eligible — in determining Medicaid eligibility that standard should apply to the state’s entire foster care population.
  • We also endorse those proposals that would allow states to treat youth 17 and younger as minors rather than the current proposals that apply to age 16 and younger.

If current guidance remains unaltered, then a source of identification will be required as a substitute for a passport. Clearly a vast majority of children in foster care will not have a passport or the means to purchase one. A secondary source to establish identity when a passport is not available is a driver’s license. A driver’s license is not going to be available to the more than 80 percent of the foster care population who are not legally of age to obtain such a document. Additionally, these minor children are unlikely to be in possession of birth certificate or church records that may assist in establishing citizenship and identity.

In regard to identification, HHS should recognize that these children have in fact been identified as wards of the state in the eyes of the state court system. We urge the guidance to be changed to accept as evidence of identification the fact that these children are wards of the state with a specific identity.

In reviewing the many recommendations being offered we hope that HHS can act in a way that will remedy this situation. We thank you for your attention to this matter.


Shay Bilchik
Child Welfare League of America