Elder Law Minute™
Proof of Citizenship – may require more than you think

BY RONALD A. FATOULLAH, Esq.
and STACEY MESHNICK, Esq.

As of April 1, 2010, Medicaid will no longer require applicants to undergo a face to face interview. This change, along with a brand new Medicaid application form, is intended to simplify the complex application process. Despite these changes, the application process is anything but simple. The documentation requirements mandated by the Deficit Reduction Act of 2005 are still in place and must be dealt with appropriately.

            Applicants must continue to submit original documentation verifying their citizenship. Client representatives, hospitals, nursing homes or facilitated enrollers can review original documents, make copies and write a statement on the copy that the originals were seen. Individuals who are in receipt of Medicare benefits or SSI/SSD remain exempt from these validation requirements.

            The new provisions do not affect immigrants. Individuals with satisfactory immigration status can continue to receive Medicaid benefits in New York.

            States are at risk of losing their federal matching funds if they do not obtain documentary evidence from citizen applicants. There are four levels of documentation which can be used for submission. United States passports or Certificates of Naturalization or Certificates of U.S. Citizenship are considered “primary” documents.  If the applicant does not have one of these documents, a birth certificate is acceptable as long as it is submitted with another document.

            Secondary documents, such as a birth certificate, U.S. Citizen I.D. Card, final adoption decree, or U.S. military record, do not establish identity. Hence, an applicant who uses a secondary document to prove citizenship must also have another document, such as doctor or hospital record, school record, or affidavit (signed under penalty of perjury) to prove identity.

            As long as there is nothing to indicate that the applicant is not a U.S. Citizen, when a primary or secondary document is not available, the applicant may provide a third level document, such as an extract of a hospital record on hospital letterhead, religious record, early school record or a life, health or other insurance record if it shows a U.S. place of birth and was created at least five years prior to the Medicaid application date.

            Fourth level documents such as a Federal or State census record, hospital record or statement signed by a physician present at the time of birth, or two affidavits satisfying specific requirements including the fact that the affiant cannot be related to the applicant, may be used.

            At the time of the application or re-determination, the Medicaid agency must give an applicant a reasonable opportunity to present documents establishing U.S. citizenship and identity. The agency should assist the applicant in securing the documentation if he/she tries in good faith to present the documentation.

            Effective December 2009, individuals who file United States Citizenship and Immigration Services (USCIS) applications at certain USCIS facilities will now be able to receive an email or text message informing them of acceptance of their application. However, a copy of the email or text message will not be accepted as evidence to HRA that USCIS has granted immigration status to a Medicaid applicant.

            It is recommended that citizenship and other personal documentation be kept in a secure location, and available for presentation, regardless of the need for a Medicaid application.

            Medicaid eligibility laws, rules and regulations are very complex. Further, the way a Medicaid application is submitted along with all supporting documentation often determines whether or not an applicant will receive Medicaid benefits. Applicants are advised to seek the counsel of an elder law attorney who will prepare the Medicaid application and all documentation to ensure the best chance of receiving needed benefits.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn, and Cedarhurst, NY. Fatoullah has been named a “fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. He also served on the Executive Committee of the Elder Law Section of the New York State Bar Association for over 15 years. Fatoullah has been certified as an Elder Law Attorney by the National Elder Law Foundation. Fatoullah is a co-founder of Senior Umbrella Network of Queens. This article was written with Stacey Meshnick, Esq., a senior staff attorney at the firm. Ronald Fatoullah & Associates can be reached by calling 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.