As of January 16, 2014, the Accuracy for Adoptees Act requires we recognize a State Court’s determined date of birth as indicated on certain U.S.-issued documents ( e.g. U.S. State- issued court order or U.S. State vital records document) issued as evidence of date of birth for foreign-born children adopted by a U.S. citizen parent. A legal opinion determining the validity of the U.S. issued evidence is necessary when it is presented as evidence to either establish or change an individual’s date of birth in our Numident record if the individual is a foreign born child adopted by a U.S. citizen parent

BACKGROUND

PR 04-047 MOS-Ohio (PR 028053.039 Ohio)

An Ohio statute allowed adoptive parents to request the county court to revise their adopted foreign-born child’s date of birth, based on a physician recommendation. See PR 04-047. In the particular case at issue in that Opinion, the physician recommended the change based on educational, emotional, and social reasons. Id. The court issued a judgment revising the child’s date of birth to one year later than his actual date of birth. Id.

Subsequently, the parents of the adopted foreign-born child applied for a Social Security card on the child’s behalf, and indicated his revised date of birth, which was one year later than the date of birth demonstrated on his federal permanent resident card. Id. The question arose as to whether the Social Security Administration (the agency) should rely on the revised date of birth.

In addressing the issue, we noted that the Social Security Act, Regulations, Rulings, and POMS did not directly addressed whether to allow a change in an individual’s date of birth based on a state statute that allowed revisions of birth dates for adopted children. Id.. After consulting with a policy expert from the Office of Income Security Programs, we determined that the actual date of birth should be recorded on a numident record, regardless of whether state law would allow an individual to change the date of birth for emotional or other reasons. Id.

 

ANALYSIS

 

On January 16, 2014, the President signed Public Law 113-074, the Accuracy for Adoptees Act. According to that law, federal agencies, including the Social Security administration, are required to accept State issued birth certificates, as evidence of date of birth for foreign-born adoptees who are adopted by a U.S. citizen parent. See Accuracy for Adoptees Act, Pub. L. No. 113-074, 127 Stat. 1212 (2014) (“To require Certificates of Citizenship and other Federal documents to reflect name and date of birth determinations made by a State court and for other purposes.”).

The Social Security Administration (SSA) has clearly taken into account the effect of the Accuracy for Adoptees Act. Emergency Message (EM)-14023 indicates “[t]his law requires Federal agencies to accept U.S. issued documents (e.g. U.S. birth certificates) as evidence of legal name and date of birth for foreign-born adoptees who are adopted by a U.S. citizen parent.” EM-14023 further sets forth instructions regarding processing name and date of birth determinations in light of the new law.

As set forth above, in PR 04-047, we previously advised SSA not to accept the Ohio court’s revision of the date of birth of an adopted foreign-born child. See PR 04-047. However, in light of the newly enacted Accuracy for Adoptees Act, which requires the agency to accept such information, the precedential opinion is no longer accurate and should be removed.

CONCLUSION

Based on the Accuracy for Adoptees Act, which requires the Social Security Administration to accept date of birth determinations made by a State court as evidence of the date of birth of a foreign-born adoptee adopted by a U.S. citizen parent, POMS PR 04-047 should be removed.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: ____________

Shefali Baltz

Assistant Regional Counsel

Ohio law permits adoptive parents to revise the proven and valid date of birth (DB) of their adopted child for emotional or social reasons if a physician recommends such a revision. SSA, however, relies on an individual's proven DB in order to establish entitlement to, and the amount of, benefits. Although Ohio law allows adoptive parents to revise an adopted child's proven DB based on a physician's recommendation, SSA does not revise the child's DB on its records.

INTRODUCTION

DISCUSSION

On January 31, 2003, Nancy and Joseph K~, the adoptive parents of Zachary E. K~ (Zachary), applied for a Social Security card on Zachary's behalf. They indicated on the application that Zachary's birth date was June 2, 1992, a revised birth date that was one year younger than Zachary's actual chronological age. Zachary's federal permanent resident card showed that his birth date was June 2, 1991. The Immigration and Naturalization Service also recorded his birth date as June 2, 1991. Zachary came to the United States for his international adoption in June 2002.^[1] ]

Section 3107.18(C) of the Ohio Revised Code allows adoptive parents to request the county court revise their child's birth date, if a physician has recommended a revision. Here, Zachary's adoptive parents applied for and were granted a revision of Zachary's birth date from the probate court of Hamilton County, Ohio. The court's judgment entry of December 9, 2002, revised Zachary's birth date, pursuant to Section 3107.18(c) of the Ohio Revised Code, so that he would be one year younger than his actual chronological age. Zachary's parents petitioned the court for the birth date change on the advice of Mary A. S~, M.D., M.P.H., a pediatrician and director of the International Adoption Center, who examined Zachary and found he was delayed educationally, emotionally, and socially. Dr. S~ explained that his delays were due in part to sub-optimal nutrition and care received when Zachary was in an orphanage in Bulgaria. Dr. S~ surmised that a change in the child's birth date to make him one year younger would help compensate for the discrepancy between his chronological age and his developmental milestones.

The Social Security Act, Regulations, Rulings, and POMS do not directly address whether to allow a change in an individual's birth date based on a state statute that allows revisions of birth dates for adopted children. The regulations at 20 C.F.R. 401.65 allow an individual to correct mistakes in his birth record. Likewise, POMS GN 00302.327E and SSR 81-16 allow Holocaust survivors to correct birth dates that were changed to avoid Nazi persecution. SSR 65-34c and 75-15c address evidence to consider as proof of a mistaken birth date. However, there is no question of mistake here. Zachary's parents acknowledge that his actual birth date was June 2, 1991, and that they legally changed it on the basis of a physician's recommendation under an Ohio statute that allows such a change. Thus, the regulation, POMS provision, and rulings that allow corrections of birth date mistakes do not appear to be relevant here.

POMS DI 25215.010 allows the application of a "corrected chronological age" for a premature infant when evaluating a child's developmental delays. This provision is used when evaluating disability in children who were born prematurely, to determine whether their developmental delays are the result of a medically determinable impairment or attributable to the child's prematurity. The child's prematurity is only considered so long as it is a relevant factor, with most developmental delays resolved by about chronological age two. This POMS provision does not appear to apply to Zachary, as he is merely applying for a Social Security number, not disability benefits. Moreover, he is eleven years old, and his developmental delays were attributed to poor care in Bulgaria, rather than premature birth. In any event, this provision does not state that the individual's date of birth will be adjusted for all purposes.

However, the POMS make clear that a birth certificate does not always control in determining an individual's date of birth, especially when the certificate was created after age 5, and when there is significant reliable evidence indicating that the date of birth is other than that listed on the birth certificate. e.g., POMS GN 00302.054(B), GN 00302.160, GN00302.165. We contacted a policy expert in the Office of Income Security Programs, who advised that the actual date of birth should be recorded on the numident record, regardless of whether state law would allow the individual to change the date of birth for emotional or other reasons. This policy seems sound since, as you noted, the date of birth could affect future entitlement to or amounts of benefits. Moreover, the POMS provide that, once claimants have established their age in connection with an SSN application, they will not be required to resubmit evidence of age if they later refile, unless the adjudicator has reason to question the accuracy of the proven age. POMS GN 00302.010(B). Thus, it seems appropriate to record the actual date of birth at the time of the SSN application, since an adjudicator may not have sufficient information to question the accuracy of the date when a subsequent application is filed.

Thank you for requesting our input.