The Deficit Reduction Act of 2005 - Reducing the Number of Recipients and Applicants Eligible to Receive Medicaid Benefits: A Statutory Analysis of the Citizenship Documentation Requirements and Proposed Amendments to Ease the Burden on Individuals and States

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  I. INTRODUCTION
 II. THE HISTORY AND CITIZENSHIP REQUIREMENTS OF THE DEFICIT
     REDUCTION ACT OF 2005
     A. The Hierarchy of Citizenship Documentation Accepted.
     B. Exemptions and Extra Documentation Options
III. THE ADVERSE IMPACT OF THE ACT ON STATES
 IV. THE ADVERSE IMPACT OF THE ACT ON INDIVIDUALS
  V. THE ACT VIOLATES THE FIFTH AMENDMENT OF THE CONSTITUTION
     BECAUSE IT TREATS CITIZEN APPLICANTS WORSE THAN QUALIFIED
     IMMIGRANT APPLICANTS
     A. The Medicaid Statute Should Be Amended to Remedy the
        Unequal Treatment of Citizen and Immigrant Applicants
     B. Congress Should Apply the Reasonable Opportunity
        Language to Citizen Applicants in a Manner Consistent
        With the Current Statutory Framework
 VI. THE CODE OF FEDERAL REGULATIONS SHOULD BE
     AMENDED TO EXEMPT STATES FROM DOCUMENTING
     FOSTER CHILDREN BECAUSE NOT DOING SO Is AGAINST
     CONGRESSIONAL INTENT AND IS BAD PUBLIC POLICY
VII. THE HIERARCHY IS PROBLEMATIC BECAUSE IT FAILS
     TO CREATE A LAST RESORT OPTION AND IS
     UNNECESSARILY COMPLICATED
     A. The Code of Federal Regulations Should Be
        Amended To Require States To Assist All
        Applicants Obtain Citizenship Documentation
        and To Provide a Last Resort Option for
        Establishing Citizenship

     B. The Hierarchy Structure Should Be Simplified To
        Alleviate the Unnecessary Burdens Imposed on
        Individuals and States

VIII. CONCLUSION

I. INTRODUCTION

George "has had two strokes and cannot swallow or communicate verbally." (1) Since he cannot care for himself, George resides in a nursing home and relies on Medicaid health coverage to pay for his nursing home care and other healthcare costs. (2) George "does not have any relatives to care for him," and as a result fellow church member Art Huenkemeir is his Trustee and has his Power of Attorney. (3) George declared his citizenship "in writing, under penalty of perjury" (4) to fulfill the requirements to become eligible to receive Medicaid. (5) Congress, however, changed the Medicaid requirements by enacting the Deficit Reduction Act of 2005 ("Act"), which requires states to obtain documentary evidence of United States citizenship for certain Medicaid applicants and recipients as a condition for receiving federal funding. (6) This citizenship documentation requirement is "an administrative requirement if a state wants to get federal financial participation"; it is not an eligibility requirement, but has the effect of being one. (7)

George was born in the United States on July 31, 1926, but does not have a United States passport, birth certificate, government photo identification card, or any other document that would satisfy the citizenship documentation requirements. (8) His Trustee, Huenkemeier, examined all of George's paperwork taken from his home when George moved into the nursing home, but he was unable to find any citizenship documentation. (9) Because of his health problems, George is incapable of assisting in any way to secure the documentation required by the Act. (10) Upon redetermination of George's eligibility to receive Medicaid, George will be unable to provide citizenship documentation verification, (11) and his benefits will likely be terminated by the state for fear it will lose federal financial participation. (12)

Medically impaired individuals such as George, as well as disaster victims, mentally handicapped persons, homeless persons, and foster children, will be adversely affected by the new citizenship documentation requirements imposed upon the states by the Act. (13) States will also be adversely affected by the increased administrative costs of implementing the Act's requirements. (14) This note asserts that aspects of the citizenship verification requirements treat citizen applicants worse than immigrant applicants, which violates the Due Process Clause of the Fifth Amendment. …