Birth Certificate Standards: Drafted Eight Years Ago, Still Not Published

By Janice Kephart, February 20, 2013

Buried deep in federal government bureaucracies, tenacious mid-level directors worked arduously eight years ago to prepare minimum standards for issuance of birth certificates, something recommended by the 9/11 Commission and enacted into law by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The Department of Health and Human Services (HHS), which is responsible for working with the states to receive vital records updates, spearheaded the drafting of the birth certificate regulations. The first draft of the proposed regulations was put out for comment to the states and those comments were incorporated into a second draft.

That was eight years ago. The Bush administration refused to proceed further and formally issue the regulations. After the Obama administration also sat on the draft regulations for three years, earlier in 2012 rumblings were heard that it had scheduled the regulations for release in September 2012. But the administration never circulated the draft among federal government stakeholders and the self-imposed deadline passed. Now we are told the new date is March 2013, but once more none of the necessary bureaucratic steps to get the regulation out the door have taken place.

To be clear about how lame the government has been in issuing these regulations, IRTPA preceded the now well-known REAL ID driver's license minimum issuing standards, which was passed in 2005, with regulations produced and released in January 2008.

In contrast, today the birth certificate standards remain at HHS "for review" with potential changes by whom and for what reason we still have not been informed. Once HHS completes its draft — if it does so — the proposed regulation will be sent to the Office of Management and Budget at the White House, which will circulate it on to other impacted federal agencies, including DHS. Once other agencies comment and OMB makes the changes it deems necessary, the regulations will be published for public comment.

Until OMB releases it, however, no other federal agency can see it or comment on the draft. And until HHS bothers to hit "send" to OMB, there is no hope of a published regulation. Why do we care? Because birth certificates are the easiest identifying document to forge imaginable. Thousands upon thousands of entities issue birth certificates, from local hospitals to municipalities, and none are required to meet the minimum standards required to reduce fraud and counterfeiting.

If Congress truly cared about keeping U.S. jobs for those legally entitled to them or about a truly "comprehensive" immigration package, it would do what it takes to get these birth certificate regulations out the door. Government has done much harder lifts in the past. I think HHS can handle this one, too. Even eight years late.