Virginia Law

Chapter 40. Eligibility Conditions and Requirements

Part I
General Conditions of Eligibility

12VAC30-40-10. General conditions of eligibility.

Each individual covered under the plan:

1. Is financially eligible (using the methods and standards described in Parts II (12VAC30-40-20 through 12VAC30-40-80) and III (12VAC30-40-90 through 12VAC30-40-210) of this chapter) to receive services.

2. Meets the applicable nonfinancial eligibility conditions.

a. For the categorically needy:

(1) Except as specified under subdivisions 2 a (2) and 2 a (3) of this section, for Title IV-E individuals covered under § 1902(a)(10)(A)(i)(1), meet the nonfinancial eligibility conditions of the Medicaid program.

(2) For SSI-related individuals, meet the nonfinancial criteria of the SSI program or more restrictive SSI-related categorically needy criteria.

(3) For financially eligible parent/caretaker relatives, pregnant women, infants, or children covered under § 1902(a)(10)(A)(i)(IV), 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(VII), 1902(a)(10)(A)(ii)(IX), and 1931 of the Social Security Act (Act), meet the nonfinancial criteria of § 1902(l) of the Act.

(4) For financially eligible aged and disabled individuals covered under § 1902(a)(10)(A)(ii)(X) of the Act, meet the nonfinancial criteria of § 1902(m) of the Act.

b. For the medically needy, meet the nonfinancial eligibility conditions of 42 CFR Part 435.

c. For financially eligible qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act, meet the nonfinancial criteria of § 1905(p) of the Act.

d. For financially eligible qualified disabled and working individuals covered under § 1902(a)(10)(E)(ii) of the Act, meet the nonfinancial criteria of § 1905(s).

3. May receive Medicaid eligibility if otherwise eligible. The Commonwealth provides Medicaid to citizens and nationals of the United States and certain noncitizens consistent with requirements of 42 CFR 435.406, including during a reasonable opportunity period pending verification of their citizenship, national status, or satisfactory immigration status. The Commonwealth provides Medicaid eligibility to otherwise eligible individuals:

a. Who are citizens or nationals of the United States;

b. Who are qualified noncitizens as defined in § 431 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) (8 USC § 1641) or whose eligibility is required by § 402(b) of PRWORA (8 USC § 1612(b)) and certain qualified noncitizens whose eligibility is not prohibited by § 403 of PRWORA (8 USC § 1613); and

(1) (Reserved.)

(2) The Commonwealth limits eligibility to seven years for certain noncitizens, including those admitted to the United States as a:

(a) Refugee under § 207 of the Immigration and Nationality Act (INA) (8 USC § 1101 et seq.);

(b) Aslyee under § 208 of the INA;

(c) Deportee whose deportation is withheld under § 243(h) or 241(b)(3) of the INA;

(d) Cuban-Haitian entrant, as defined in § 501(e) of the Refugee Education Assistance Act of 1980;

(e) Amerasian; or

(f) Victim of a severe form of trafficking.

c. Who have declared themselves to be citizens or nationals of the United States, or any individual having satisfactory immigration status, during a reasonable opportunity period pending verification of their citizenship, nationality, or satisfactory immigration status consistent with requirements of §§ 1903(x), 1137(d), and 1902(ee) of the Act and 42 CFR 435.406, and 956;

d. Who is a noncitizen, who is not a qualified noncitizen, or who is a qualified noncitizen who arrived in the United States on or after August 22, 1996, whose coverage is not mandated by P.L. 104-193 (coverage must be restricted to certain emergency services); or

e. Who is a noncitizen who is a pregnant woman or who is a child younger than the age of 19 years who is legally residing in the United States and whose coverage is authorized under the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA). CHIPRA provides for coverage of the following individuals:

(1) A qualified noncitizen as defined in § 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996;

(2) A noncitizen in nonimmigrant status who has not violated the terms of the status under which he was admitted or to which he has changed after admission;

(3) A noncitizen who has been paroled into the United States pursuant to § 212(d)(5) of the Immigration and Nationality Act (INA) for less than one year, except for a noncitizen paroled for prosecution, for deferred inspection, or pending removal proceedings;

(4) A noncitizen who belongs to one of the following classes:

(a) Individuals currently in temporary resident status pursuant to § 210 or 245A of the INA;

(b) Individuals currently under Temporary Protected Status (TPS) pursuant to § 244 of the INA and pending applicants to TPS who have been granted employment authorization;

(c) Noncitizens who have been granted employment authorization under 8 USC § 274a.12(c)(9), (10), (16), (18), (20), (22), or (24);

(d) Family unity beneficiaries pursuant to § 301 of P.L. No. 101-649 as amended;

(e) Noncitizens currently under Deferred Enforced Departure (DED) pursuant to a decision made by the President of the United States;

(f) Noncitizens currently in deferred action status; and

(g) Noncitizens whose visa petitions have been approved and who have a pending application for adjustment of status;

(5) Noncitizens who are pending applicants for asylum under § 208(a) of the INA or for withholding of removal under § 241(b)(3) of the INA or under the Convention against Torture who has been granted employment authorization, and such an applicant younger than the age of 14 years who has had an application pending for at least 180 days;

(6) A noncitizen who has been granted withholding of removal under the Convention against Torture;

(7) A child who has a pending application for Special Immigrant Juvenile status as described in § 101(a)(27)(J) of the INA;

(8) A noncitizen who is lawfully present in the Commonwealth of the Northern Mariana Islands under 48 USC § 1806(e); or

(9) A noncitizen who is lawfully present in American Samoa under the immigration laws of American Samoa.

4. Is a resident of the Commonwealth, regardless of whether or not the individual maintains the residence permanently or maintains a fixed address. The state has open interstate residency agreements.

5. Is not an inmate of a public institution. Public institutions do not include medical institutions, nursing facilities and intermediate care facilities for the intellectually disabled, publicly operated community residences that serve no more than 16 residents, or certain child care institutions.

6. a. Is required, as a condition of eligibility, to assign rights to medical support and to payments for medical care from any third party, to cooperate in obtaining such support and payments, and to cooperate in identifying and providing information to assist in pursuing any liable third party. The assignment of rights obtained from an applicant or recipient is effective only for services that are reimbursed by Medicaid. The requirements of 42 CFR 433.146 through 433.148 are met.

b. Shall also cooperate in establishing the paternity of any eligible child and in obtaining medical support and payments for himself and any other person who is eligible for Medicaid and on whose behalf the individual can make an assignment; except that individuals described in § 1902(l)(1)(A) of the Social Security Act (pregnant women and women in the postpartum period) are exempt from these requirements involving paternity and obtaining support. Any individual may be exempt from the cooperation requirements by demonstrating good cause for refusing to cooperate.

c. Shall also cooperate in identifying any third party who may be liable to pay for care that is covered under the state plan and providing information to assist in pursuing these third parties. Any individual may be exempt from the cooperation requirements by demonstrating good cause for refusing to cooperate.

7. a. Is required, as a condition of eligibility, to furnish his social security account number (or numbers, if he has more than one number) except for noncitizens seeking medical assistance for the treatment of an emergency medical condition under § 1903(v)(2) of the Social Security Act (§ 1137(f)).

b. Is required, under § 1903(x) to furnish satisfactory documentary evidence of both identity and of U.S. citizenship upon signing the declaration of citizenship required by § 1137(d) unless citizenship and identity has been verified by the Commissioner of Social Security pursuant to § 211 of the Children's Health Insurance Program Reauthorization Act (CHIPRA), or the individual is otherwise exempt from this requirement. Qualified noncitizens signing the declaration of satisfactory immigration status must also present and have verified documents establishing the claimed immigration status. Exception: Nonqualified noncitizens seeking medical assistance for the treatment of an emergency medical condition under § 1903(v)(2).

8. Is not required to apply for public assistance cash benefits under Title IV-A as a condition of applying for, or receiving Medicaid if the individual is a pregnant women, infant, or child that the state elects to cover under § 1902(a)(10)(A)(i)(IV) and 1902(a)(10)(A)(ii)(IX) of the Act.

9. Is required to apply for coverage under Medicare A, B or D, or any combination of Medicaid A, B, and D, if it is likely that the individual would meet the eligibility criteria for any or all of those programs. The state agrees to pay any applicable premiums and cost-sharing (except those applicable under Part D) for individuals required to apply for Medicare. Application for Medicare is a condition of eligibility unless the state does not pay the Medicare premiums, deductibles or co-insurance (except those applicable under Part D) for persons covered by the Medicaid eligibility group under which the individual is applying.

10. Is required, as a condition of eligibility for Medicaid payment of long-term care services, to disclose at the time of application for or renewal of Medicaid eligibility, a description of any interest the individual or his spouse has in an annuity (or similar financial instrument as may be specified by the Secretary of Health and Human Services). By virtue of the provision of medical assistance, the state shall become a remainder beneficiary for all annuities purchased on or after February 8, 2006.

11. Is ineligible for Medicaid payment of nursing facility or other long-term care services if the individual's equity interest in his home exceeds $500,000. This dollar amount shall be increased beginning with 2011 from year to year based on the percentage increase in the Consumer Price Index for all Urban Consumers rounded to the nearest $1,000.

This provision shall not apply if the individual's spouse, or the individual's child who is under age 21 years or who is disabled, as defined in § 1614 of the Social Security Act, is lawfully residing in the individual's home.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-02-2.6100 A, eff. June 16, 1993; amended, Virginia Register Volume 13, Issue 18, eff. July 1, 1997; Volume 22, Issue 23, eff. August 23, 2006; Volume 23, Issue 11, eff. March 7, 2007; Errata, 25:19 VA.R. 3464 May 25, 2009; amended, Virginia Register Volume 25, Issue 20, eff. July 23, 2009; Volume 27, Issue 9, eff. February 17, 2011; Errata, 27:10 VA.R. 964 January 17, 2011; amended, Virginia Register Volume 29, Issue 21, eff. July 17, 2013; Volume 33, Issue 21, eff. July 27, 2017; subdivision 3 b (1) withdrawn, Volume 33, Issue 23, eff. July 27, 2017; Errata, 33:24 VA.R. 2741 July 24, 2017.

Part II
Post-Eligibility Treatment of Institutionalized Individuals

12VAC30-40-20. Post-eligibility treatment of institutionalized individuals.

The following amounts are deducted from gross income when computing the application of an individual's or couple's income to the cost of institutional care:

1. Personal needs allowance.

a. Aged, blind, disabled:

Individuals: $40 PLUS *

Couples: $60 PLUS *

For the following individuals with greater need -- * (1) Patients in institutions who participate in work programs as part of treatment. The first $75.00 of earnings plus 1/2 the remainder, up to a maximum of $190.00 monthly is allowed to be retained for personal needs. * (2) Patients receiving institutional or home- and community-based waiver services who pay guardianship fees, the actual cost of guardian fees up to a maximum of 5% of gross income.

b. AFDC related:

Children: $40

Adults: $60

c. Individuals under age 21 covered in this plan as specified in Item b.7 of 12VAC30-30-20: $40

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-2.6100 B, eff. June 1, 1994; amended, Virginia Register Volume 23, Issue 18, eff. July 1, 2007.

12VAC30-40-30. Maintenance needs of non-institutionalized spouse.

For maintenance of the non-institutionalized spouse only. The amount must be based on a reasonable assessment of need but must not exceed the highest of--

See 12VAC30-40-80.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 B, eff. June 1, 1994.

12VAC30-40-40. Children.

For children, each family member. (Applies only to children not living with the community spouse.)

For children living with the community spouse, see 12VAC30-40-80.

* Group I: $216.67; Group II: $250; Group III: $325. For appropriate family size see 12VAC30-40-220.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 B, eff. June 16, 1993.

12VAC30-40-50. Medical expenses.

Amounts for incurred medical expenses not subject to payment by a third party

a. Health insurance premiums, deductibles and co-insurance charges

b. Necessary medical or remedial care not covered under the Medicaid plan

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 B, eff. June 16, 1993.

12VAC30-40-60. Maintenance of residence.

An amount for maintenance of a single individual's home for not longer than 6 months, if a physician has certified he or she is likely to return home within that period.

Amount for maintenance of home:

$ See below*

* Group I: $216.67; Group II: $250; Group III: $325. For appropriate family size see 12VAC30-40-220.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 B, eff. June 16, 1993.

12VAC30-40-70. SSI benefits.

SSI benefits paid under § 1611(e)(1)(E) of the Act to individuals who receive care in a hospital or NF.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 B, eff. June 16, 1993.

12VAC30-40-80. Maintenance standards.

Maintenance standard for community spouse and other dependent family members under § 1924 of the Act.

1. Community spouses: Standard based on formula contained in § 1924(d) is used.

2. Other family members who are dependent: Standard based on the formula contained in § 1924(d)(1)(c) is used.

3. The standards described above are used for individuals receiving home and community based services in lieu of services provided in medical or remedial institutions.

4. The definition of dependency below is used to define dependent children, parents and siblings for purposes of deducting allowances under § 1924.

a. Dependent children -- A child under age 21 and a child age 21 years old and older of either spouse who lives with a community spouse and who may be claimed as a dependent by either member of a couple for tax purposes under the Internal Revenue Services Code.

b. Dependent parents -- Parents of either member of a couple who reside with the community spouse and who may be claimed as dependents by either spouse for tax purposes under the Internal Revenue Services Code.

c. Dependent siblings -- A brother or sister of either member of a couple (including half-brothers and half-sisters and siblings gained through adoption) who reside with the community spouse and who may be claimed by either member of the married couple for tax purposes under the Internal Revenue Services Code.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-2.6100 B, eff. October 1, 1989; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

Part III
Financial Eligibility

12VAC30-40-90. Income and resource levels and methods.

Article 1
General

A. For individuals who are AFDC-related medically needy or SSI recipients, the income and resource levels and methods for determining countable income and resources of the AFDC and SSI program apply, unless the plan provides for more restrictive levels and methods than SSI for SSI recipients under § 1902(f) of the Act, or more liberal methods under § 1902(r)(2) of the Act, as specified in this section.

B. For individuals who are not AFDC-related medically needy or SSI recipients in a non-section 1902(f) state and those who are deemed to be cash assistance recipients, the financial eligibility requirements specified in this article apply.

C. 12VAC30-40-100 specifies the methods for determining income for individuals evaluated using modified adjusted gross income (MAGI) methodology.

D. 12VAC30-40-220 specifies the income levels for mandatory and optional categorically needy groups of individuals, including individuals with incomes related to the federal income poverty level, that is pregnant women and infants or children covered under §§ 1902(a)(10)(A)(i)(IV), 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(VII), and 1902(a)(10)(A)(ii)(IX) of the Act and aged and disabled individuals covered under § 1902(a)(10)(A)(ii)(X) of the Act, and for mandatory groups of qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act.

E. 12VAC30-40-230 specifies the resource levels for mandatory and optional categorically needy poverty level related groups and for medically needy groups.

F. 12VAC30-40-260 specifies the income levels for categorically needy aged, blind, and disabled persons who are covered under requirements more restrictive than SSI.

G. 12VAC30-40-240 specifies the methods for determining resource eligibility used by states that have more restrictive methods than SSI, permitted under § 1902(f) of the Act.

H. 12VAC30-40-270 specifies the resource standards to be applied for categorically needy individuals in states that have elected to impose more restrictive eligibility requirements than SSI, permitted under § 1902(f) of the Act.

I. 12VAC30-40-280 specifies the methods for determining income eligibility used by states that are more liberal than the methods of the cash assistance programs, permitted under § 1902(r)(2) of the Act.

J. 12VAC30-40-290 specifies the methods for determining resource eligibility used by states that are more liberal than the methods of the cash assistance programs, permitted under § 1902(r)(2) of the Act.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-02-2.6100 C, eff. July 1, 1993; amended, VR460-02-2.6100:1, eff. November 15, 1995; Volume 33, Issue 21, eff. July 27, 2017.

12VAC30-40-100. Methods of determining income.

A. Families and Children Medically Needy individuals.

1. In determining countable income for Families and Children Medically Needy individuals, the methods under the state's July 16, 1996, approved Aid to Families with Dependent Children plan and any more liberal methods described in 12VAC30-40-280 are used.

2. In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to children living with parents until the children become 21 years of age.

3. Agency continues to treat women eligible under the provisions of § 1902(a)(10) of the Act as eligible, without regard to any changes in income of the family of which she is a member, for the 60-day period after her pregnancy ends and any remaining days in the month in which the 60th day falls.

B. Individuals subject to the use of modified adjusted gross income (MAGI) methodology. In determining income eligibility for individuals subject to the use of MAGI-based methodologies, the following shall apply:

1. The Commonwealth shall apply MAGI-based methodologies as described in this subsection, and consistent with 42 CFR 435.603 and § 1902(e)(14) of the Act. Individuals subject to the use of MAGI-based income methodologies include:

a. Parents/caretaker relatives under §§ 1902(a)(10)(A)(i)(l) and 1931 of the Act.

b. Pregnant women under §§ 1902(a)(10)(A)(i)(l), (lll), (IV), (ii)(l), ((IV), (IX) and 1931 of the Act.

c. Children under the age of 19 years under §§ 1902(a)(10)(A)(i)(l), (lll), (IV), (VI), (VII), (ii)((IV), (IX) and 1931 of the Act.

d. Reasonable classifications of children younger than the age of 21 years under §§ 1902(a)(10)(A)(ii)(l) and (IV) of the Act.

e. Individuals younger than the age of 21 years who are under a state adoption assistance agreement under § 1902(a)(10)(A)(ii)(VIII) of the Act.

2. In the case of determining the ongoing eligibility for individuals determined eligible for Medicaid on or before December 31, 2013, MAGI-based income methodologies shall not be applied until March 31, 2014, or the next regularly scheduled renewal of eligibility, whichever is later, if the applications of such methods should result in determination of ineligibility prior to such date.

C. In determining family size for the eligibility determination of a pregnant woman, the pregnant woman shall be counted as herself plus each of the children she is expected to deliver. In determining family size during the eligibility determination of the other individuals in a household that includes a pregnant woman, the pregnant woman shall be counted as just herself.

D. Financial eligibility shall be determined consistent with the following provisions:

1. Financial eligibility shall be based on current monthly income and family size when determining eligibility for new applicants.

2. Financial eligibility shall be based on current monthly household income and family size when determining eligibility for currently enrolled individuals.

3. Household income shall be the sum of the MAGI-based income of every individual included in the individual's household except as provided at 42 CFR 435.603(d)(2) through 42 CFR 435.603(d)(4).

4. An amount equivalent to five percentage points of the federal poverty level for the applicable family size shall be deducted, in determining eligibility for Medicaid, from the household income in accordance with 42 CFR 435.603(d).

5. The age used for children with respect to 42 CFR 435.603(f)(3)(iv) shall be 19 years of age.

E. Aged individuals. In determining countable income for aged individuals, including aged individuals with incomes up to the federal poverty level described in § 1902(m)(1) of the Act, the following methods are used.

1. The methods of the SSI program, any more liberal methods described in 12VAC30-40-280, or both apply.

2. For optional state supplement recipients in § 1902(f) states and SSI criteria states without § 1616 or § 1634 agreements, SSI methods, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

3. In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses.

F. Blind individuals. In determining countable income for blind individuals, only the methods of the SSI program, any more liberal methods described in 12VAC30-40-280, or both apply.

For optional state supplement recipients in § 1902(f) states and SSI criteria states without § 1616 or § 1634 agreements, the SSI methods, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses and the income of parents as available to children living with parents until the children become 21 years of age.

G. Disabled individuals. In determining countable income of disabled individuals, including disabled individuals with incomes up to the federal poverty level described in § 1902(m) of the Act, the methods of the SSI program, any more liberal methods described in 12VAC30-40-280, or both apply.

For optional state supplement recipients in § 1902(f) of the Act states and SSI criteria states without § 1616 or § 1634 agreements, the SSI methods, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses and the income of parents as available to children living with parents until the children become 21 years of age.

H. Qualified Medicare beneficiaries. In determining countable income for qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act, the methods of the SSI program, more liberal methods described in 12VAC30-40-280, or both are used.

If an individual receives a Title II benefit, any amounts attributable to the most recent increase in the monthly insurance benefit as a result of a Title II COLA is not counted as income during a "transition period" beginning with January, when the Title II benefit for December is received, and ending with the last day of the month following the month of publication of the revised annual federal poverty level.

For individuals with Title II income, the revised poverty levels are not effective until the first day of the month following the end of the transition period.

For individuals not receiving Title II income, the revised poverty levels are effective no later than the date of publication.

I. Qualified disabled and working individuals. In determining countable income for qualified disabled and working individuals covered under § 1902(a)(10)(E)(ii) of the Act, the methods of the SSI program are used.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 20, Issue 4, eff. December 3, 2003; Volume 33, Issue 21, eff. July 27, 2017.

12VAC30-40-105. Financial eligibility.

Working Individuals with Disabilities; Basic Coverage Group (Ticket to Work and Work Incentive Improvement Act (TWWIIA)).

The following standards and methods shall be applied in determining financial eligibility:

1. The agency applies the following income and resource standards to applicants of this program:

a. The individual's total countable income shall not exceed 80% of the current federal poverty income guidelines; and

b. The individual's total countable assets shall not exceed $2,000.

2. Income methodologies. In determining whether an individual meets the income standard described in subdivision 1 of this section, the agency uses more liberal income methodologies than the SSI program as further described in 12VAC30-40-280.

3. Resource methodologies. The agency uses resource methodologies in addition to any indicated in subdivisions 1 and 2 of this section that are more liberal than those used by the SSI program as described in 12VAC30-40-290.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 25, Issue 21, eff. July 23, 2009.

12VAC30-40-110. Medicaid qualifying trusts.

In the case of a Medicaid qualifying trust described in § 1902(k)(2) of the Act, the amount from the trust that is deemed available to the individual who established the trust (or whose spouse established the trust) is the maximum amount that the trustee(s) is permitted under the trust to distribute to the individual. This amount is deemed available to the individual, whether or not the distribution is actually made. This provision does not apply to any trust or initial trust decree established before April 7, 1986, solely for the benefit of a mentally retarded individual who resides in an intermediate care facility for the mentally retarded.

The policy for qualifying trusts which is effective for trusts established or assets disposed of after August 10, 1993, is located in 12VAC30-40-300.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 C, eff. April 20, 1994.

12VAC30-40-120. Medically needy income levels (MNILs) based on family size.

Medically needy income levels (MNILs) are based on family size.

12VAC30-40-220 specifies the MNILs for all covered medically needy groups. If the agency chooses more restrictive levels under § 1902(f) of the Act, 12VAC30-40-220 so indicates.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 C, eff. April 20, 1994.

12VAC30-40-130. Handling of excess income; spend-down.

Handling of excess income - Spend-down for the medically needy in all states and the categorically needy in 1902(f) states only.

a. Medically Needy

(1) Income in excess of MNIL is considered as available for payment of medical care and services. The Medicaid agency measures available income for periods of either 1 or 6 month(s) (not to exceed 6 months) to determine the amount of excess countable income applicable to the cost of medical care and services.

(2) If countable income exceeds the MNIL standard, the agency deducts the following incurred expenses in the following order:

(a) Health insurance premiums, deductibles, and coinsurance charges.

(b) Expenses for necessary medical and remedial care not included in the plan.

(c) Expenses for necessary medical and remedial care included in the plan.

Incurred expenses that are subject to payment by a third party are not deducted unless the expenses are subject to payment by a third party that is a publicly funded program (other than Medicaid) of a State or local government.

b. Categorically Needy - § 1902(f) states:

The agency applies the following policy under the provisions of § 1902(f) of the Act. The following amounts are deducted from income to determine the individual's countable income:

(1) Any SSI benefit received.

(2) Any State supplement received that is within the scope of an agreement described in § 1616 or 1634 of the Act, or a State supplement within the scope of § 1902(a)(10)(A)(ii)(XI) of the Act.

(3) Increases in OASDI that are deducted under §§ 435.134 and 435.135 for individuals specified in that section, in the manner elected by the State under than section.

(4) Incurred expenses for necessary medical and remedial services recognized under State law.

Incurred expenses that are subject to payment by a third party are not deducted unless the expenses are subject to payment by a third party that is a publicly funded program (other than Medicaid) of a State or local government.

NOTE: FFP will be reduced to the extent a State is paid a spenddown payment by the individual.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993.

12VAC30-40-140. Methods for determining resources.

a. AFDC-related individuals (except for poverty level related pregnant women, infants, and children).

(1) In determining countable resources for AFDC-related individuals, the following methods are used:

(a) The methods under the state's approved AFDC plan; and/or

(b) Any more liberal methods described in 12VAC30-40-290.

(2) In determining relative financial responsibility, the agency considers only the resources of spouses living in the same household as available to spouses and the resources of parents as available to children living with parents until the children become 21.

b. Aged individuals. For aged individuals covered under § 1902(a)(10)(A)(ii)(X) of the Act, the agency used methods that are more restrictive (except for individuals described in § 1902(m)(1) of the Act) and/or more liberal than those of the SSI program for the treatment of resources. 12VAC30-40-240 describes the more restrictive methods and 12VAC30-40-290 specifies the more liberal methods.

In determining relative financial responsibility, the agency considers only the resources of spouses living in the same household as available to spouses.

c. Blind individuals. For blind individuals the agency uses methods that are more restrictive and/or more liberal than those of the SSI program for the treatment of resources. 12VAC30-40-240 describes the more restrictive methods and 12VAC30-40-290 specifies the more liberal methods.

In determining relative financial responsibility, the agency considers only the resources of spouses living in the same household as available to spouses and the resources of parents as available to children living with parents until the children become 21.

d. Disabled individuals, including individuals covered under § 1902(a)(10)(A)(ii)(X) of the Act. The agency used methods that are more restrictive (except for individuals described in § 1902(m)(1) of the Act) and/or more liberal than those of the SSI program for the treatment of resources. More restrictive methods are described in 12VAC30-40-240 and more liberal methods are specified in 12VAC30-40-290.

In determining relative financial responsibility, the agency considers only the resources of spouses living in the same household as available to spouses and the resources of parents as available to children living with parents until the children become 21.

e. Poverty level pregnant women covered under § 1902(a)(10)(A)(i)(IV) and § 1902(a)(10)(A)(ii)(IX)(A) of the Act.

The agency does not consider resources in determining eligibility.

In determining relative financial responsibility, the agency considers only the resources of spouses living in the same household as available to spouses and the resources of parents as available to children living with parents until the children become 21.

f. Poverty level infants covered under § 1902(a)(10)(A)(i)(IV) of the Act.

The agency does not consider resources in determining eligibility.

g. Poverty level children covered under § 1902(a)(10)(A)(i)(VI) of the Act.

(1) The agency does not consider resources in determining eligibility. In determining relative financial responsibility, the agency considers only the resources of spouses living in the same household as available to spouses and the resources of parents as available to children living with parents until the children become 21.

(2) Poverty level children under § 1902(a)(10)(A)(i)(VIII). The agency does not consider resources in determining eligibility.

In determining relative responsibility, the agency considers only the resources of spouses living in the same household as available to spouses and the resources of parents as available to children living with parents until the children become 21.

h. For Qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act the agency uses methods that are more liberal than those of the SSI program for the treatment of resources. More liberal methods are specified in 12VAC30-40-290.

i. For qualified disabled and working individuals covered under § 1902(a)(10)(E)(ii) of the Act, the agency uses SSI program methods for the treatment of resources.

j. Reserved.

k. Specified low-income Medicare beneficiaries covered under § 1902(a)(10)(E)(iii) of the Act. The agency uses the same method as in subsection (h) of this section.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993; amended, Virginia Register Volume 12, Issue 2, eff. November 15, 1995; Volume 20, Issue 4, eff. December 3, 2003.

12VAC30-40-150. Resource standard; categorically needy.

A. Section 1902(f) states (except as specified under subsections C and D of this section) for aged, blind and disabled individuals: same as SSI resource standards. The resource standards for other individuals are the same as those in the related cash assistance program.

B. Non-1902(f) states (except as specified under subsections C and D of this section).

1. The resource standards are the same as those in the related cash assistance program.

2. 12VAC30-40-270 specifies for 1902(f) states the categorically needy resource levels for all covered categorically needy groups.

C. The agency does not apply a resource standard for pregnant women or infants covered under the provisions of §§ 1902(a)(10)(A)(i)(IV) and 1902(a)(10)(A)(ii)(IX) of the Act.

D. The agency does not apply a resource standard for parent/caretaker relatives or children covered under the provisions of § 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(l), or 1931 of the Act.

E. For aged and disabled individuals described in § 1902(m)(1) of the Act who are covered under § 1902(a)(10)(A)(ii)(X) of the Act, 12VAC30-40-230 specifies the resource levels for these individuals.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993; amended, Virginia Register Volume 33, Issue 21, eff. July 27, 2017.

12VAC30-40-160. Resource standard; medically needy.

a. Resource standards are based on family size.

b. A single standard is employed in determining resource eligibility for all groups.

12VAC30-40-230 specifies the resource standards for all covered medically needy groups. If the agency chooses more restrictive levels under this subsection, 12VAC30-40-230 so indicates.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993.

12VAC30-40-170. Resource standard; qualified Medicare beneficiaries and specified low-income Medicare beneficiaries.

For qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act, and specified low-income Medicare beneficiaries covered under § 1902(a)(10)(E)(iii) of the Act, the resource standard is twice the SSI standard or, effective January 1, 2010, the resource limit set for the Medicare Part D Low Income Subsidy Program.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993; amended, Virginia Register Volume 12, Issue 2, eff. November 15, 1995; Volume 26, Issue 14, eff. April 14, 2010.

12VAC30-40-180. Qualified disabled and working individuals.

For qualified disabled and working individuals covered under 1902(a)(10)(E)(ii) of the Act, the resource standard for an individual or a couple (in the case of an individual with a spouse) is twice the SSI standard.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993.

12VAC30-40-190. Excess resources.

a. Categorically Needy, Qualified Medicare Beneficiaries, Qualified Disabled and Working Individuals, and Specified Low-Income Medicare Beneficiaries. Any excess resources make the individual ineligible.

b. Medically Needy. Any excess resources make the individual ineligible.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993; amended, Virginia Register Volume 12, Issue 2, eff. November 15, 1995.

12VAC30-40-200. Effective date of eligibility.

a. Groups Other Than Qualified Medicare Beneficiaries.

(1) For the prospective period. Coverage is available for the full month if aged, blind, disabled or AFDC-related individuals are eligible at any time during the month.

(2) For the retroactive period. Coverage is available for three months before the date of application if aged, blind, disabled or AFDC-related individuals would have been eligible had they applied.

b. For qualified Medicare beneficiaries defined in § 1905(p)(1) of the Act, coverage is available beginning with the first day of the month after the month in which the individual is first determined to be a qualified Medicare beneficiary under § 1905(p)(1). The eligibility determination is valid for 12 months.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100 C, eff. June 16, 1993.

12VAC30-40-210. Transfer of resources - categorically and medically needy, qualified Medicare beneficiaries, and qualified disabled and working individuals.

The agency complies with the provisions of § 1917 of the Act with respect to the transfer of resources.

Disposal of resources at less than fair market value affect eligibility for certain services as detailed in 12VAC30-40-300.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-02-2.6100:1, eff. June 16, 1993.

Part IV
Eligibility Requirements

12VAC30-40-220. Income eligibility levels.

A. 1. Groups I, II, and III income limits are set forth in this subdivision 1.

2. Pregnant women and infants under § 1902(a)(10)(i)(IV) of the Act. Effective January 1, 2014, based on 143% of the official federal income poverty level.

3. Children under § 1902(a)(10)(i)(VI) of the Act (children who have attained age one year but have not attained age six years), the income eligibility level is 143% of the federal poverty level (as revised annually in the Federal Register) for the size family involved.

4. For children under § 1902(a)(10)(i)(VII) of the Act (children who were born after September 30, 1983, and have attained age six years but have not attained age years), the income eligibility level is 143% of the federal poverty level (as revised annually in the Federal Register) for the size family involved.

B. Treatment of cost of living adjustment (COLA) for groups with income related to federal poverty level.

1. If an individual receives a Title II benefit, any amount attributable to the most recent increase in the monthly insurance benefit as a result of a Title II COLA is not counted as income during a "transition period" beginning with January, when the Title II benefit for December is received, and ending with the last day of the month following the month of publication of the revised annual federal poverty level.

2. For individuals with Title II income, the revised poverty levels are not effective until the first day of the month following the end of the transition period.

3. For individuals not receiving Title II income, the revised poverty levels are effective no later than the beginning of the month following the date of publication.

C. Qualified Medicare beneficiaries with incomes related to federal poverty level. The levels for determining income eligibility for groups of qualified Medicare beneficiaries under the provisions of § 1905(p)(2)(A) of the Act are as follows:

Section 1902(f) states, which as of January 1, 1987, used income standards more restrictive than SSI, Virginia did not apply a more restrictive income standard as of January 1, 1987.

Based on the following percentage of the official federal income poverty level:

Effective January 1, 1989: 85%

Effective January 1, 1990: 90% (no more than 100)

Effective January 1, 1991: 100% (no more than 100)

Effective January 1, 1992: 100%

D. Aged and disabled individuals described in § 1902(m)(1) of the Act; Level for determining income eligibility for aged and disabled persons described in § 1902(m)(1) of the Act is 80% of the official federal income poverty level (as revised annually in the Federal Register) for the size family involved.

E. Income levels - for medically needy. (Increased annually the increase in the Consumer Price Index but no higher than the level permitted to claim federal financial participation.

1. The following income levels are applicable to all groups, urban and rural.

2. The agency has methods for excluding from its claim for federal financial participation payments made on behalf of individuals whose income exceeds these limits.

¹As authorized in § 4718 of OBRA '90.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-03-2.6101:1, eff. June 30, 1994; amended, Virginia Register Volume 11, Issue 10, eff. March 9, 1995; Volume 11, Issue 24, eff. October 1, 1995; Volume 17, Issue 18, eff. July 1, 2001; Errata, 17:21 VA.R. 3124 July 2, 2001; amended, Virginia Register Volume 18, Issue 7, eff. January 16, 2002; Volume 18, Issue 18, eff. July 1, 2002; Volume 33, Issue 21, eff. July 27, 2017.

12VAC30-40-230. Resource levels.

A. CATEGORICALLY NEEDY GROUPS WITH INCOMES RELATED TO FEDERAL POVERTY LEVEL

Resource levels are not applicable to pregnant women or children.

B. MEDICALLY NEEDY

Applicable to all groups -

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-03-2.6102, eff. June 16, 1993.

12VAC30-40-235. Reasonable limits on amounts for necessary medical or remedial care not covered under Medicaid.

A. The Medicaid agency meets the requirements of 42 CFR 435.725, 42 CFR 435.832, and § 1924 of the Social Security Act, in that the agency will deduct amounts for incurred expenses for medical or remedial care that are not subject to payment by a third party, including medically necessary or remedial care recognized under state law but not covered under the state's Medicaid plan, subject to reasonable limits as specified in subsection B of this section.

B. All medical or remedial goods and services not subject to payment by a third party and not covered by Medicaid but recognized under state law must be prescribed by a physician, dentist, podiatrist or other practitioner with prescribing authority pursuant to Virginia law. The maximum amount that may be deducted from the patient's income for nursing facility residents shall be the maximum amount reimbursed by the higher of either Medicare or Medicaid for the same noncovered items or services.

C. If neither Medicaid nor Medicare has an allowed amount for the service rendered, then DMAS will protect from the individual's income:

1. For services, the amount of the provider's usual and customary charge; or

2. For supplies and durable medical equipment, the actual invoice cost plus the lesser of either:

a. The labor charges; or

b. A 30% mark-up from the invoice.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 20, Issue 19, eff. August 1, 2004.

12VAC30-40-240. More restrictive methods of treating resources than those of the SSI program: § 1902(f) states only.

A. The following limitations apply to resources in addition to the resource requirements of the Supplemental Security Income (SSI) program for the aged, blind and disabled.

1. For income-producing property and other nonresidential property, appropriate equity and profit is to be determined by the pro rata share owned by an individual in relation to his proportionate share of the equity and profit.

2. Property in the form of an interest in an undivided estate is to be regarded as an asset when the value of the interest plus all other resources exceeds the applicable resource limit unless it is considered unsaleable for reasons other than being an undivided estate. An heir can initiate a court action to partition. If a partition suit is necessary (because at least one other owner of or heir to the property will not agree to sell the property) in order for the individual to liquidate the interest, estimated partition costs may be deducted from the property's value. However, if a partition would not result in the applicant or recipient securing title to property having value substantially in excess of the cost of the court action, the property would not be regarded as an asset.

B. Real property.

1. The current market value of real property is determined by ascertaining the tax assessed value of the property and applying to it the local assessment rate. For noncommercial real property only, the current market value may be determined through the use of a certified appraisal in lieu of the tax assessed value. The certified appraisal must be completed by an individual licensed by the Virginia Real Estate Appraiser Board and the cost of the certified appraisal shall be borne by the applicant or recipient or his designee. The equity value is the current market value less the amount due on any recorded liens against the property. "Recorded" means written evidence that can be substantiated, such as deeds of trust, liens, promissory notes, etc.

2. Real property contiguous to an individual's residence which does not meet the home property definitions in subdivision 3 of this subsection, the SSI income-producing requirement or the exceptions listed in subdivision 6 of this subsection and which is saleable according to the provisions in 12VAC30-40-290 C shall be counted as an available resource. The equity value of the contiguous property shall be added to the value of all other countable resources.

3. Ownership of a dwelling occupied by the applicant as his home does not affect eligibility. A home shall mean the house and lot used as the principal residence and all contiguous property as long as the value of the land, exclusive of the lot occupied by the house, does not exceed $5,000. In any case in which the definition of home as provided here is more restrictive than that provided in the State Plan for Medical Assistance in Virginia as it was in effect on January 1, 1972, then a home means the house and lot used as the principal residence and all contiguous property essential to the operation of the home regardless of value.

The lot occupied by the house shall be a measure of land as designated on a plat or survey or whatever the locality sets as a minimum size for a building lot, whichever is less. In localities where no minimum building lot requirement exists, a lot shall be a measure of land designated on a plat or survey or one acre, whichever is less.

Contiguous property essential to the operation of the home means:

a. Land used for the regular production of any food or goods for the household's consumption only, including:

(1) Vegetable gardens;

(2) Pasture land which supports livestock raised for milk or meat, and land used to raise chickens, pigs, etc. (the amount of land necessary to support such animals is established by the local extension service; however, in no case shall more land be allowed than that actually being used to support the livestock);

(3) Outbuildings used to process or store any of the above;

b. Driveways which connect the homesite to public roadways;

c. Land necessary to the home site to meet local zoning requirements (e.g. building sites, mobile home sites, road frontage, distance from road, etc.);

d. Land necessary for compliance with state or local health requirements (e.g., distance between home and septic tank, distance between septic tanks, etc.);

e. Water supply for the household;

f. Existing burial plots;

g. Outbuilding used in connection with the dwelling, such as garages or tool sheds.

All of the above facts must be fully reevaluated and documented in the case record before the home site determination is made.

4. An institutionalized individual's former residence is counted as an available resource if the recipient is institutionalized longer than six months after the date he was admitted. The former residence is disregarded if it is occupied by the recipient's:

a. Spouse;

b. Minor dependent child under age 18 years;

c. Dependent child under age 19 years if still in school or vocational training;

d. Adult child who is disabled according to the Medicaid or civil service disability definition, who was living in the home with the recipient for at least one year prior to the recipient's institutionalization, and who is dependent upon the recipient for his shelter needs; or

e. Parent who is age 65 years or older and who is disabled according to the Medicaid or civil service disability definition, who was living in the home with the recipient for at least one year prior to the recipient's institutionalization, and who is dependent upon the recipient for his shelter needs.

5. An applicant or recipient's proportional share of the value of property owned jointly with another person to whom the applicant or recipient is not married as tenants in common or joint tenants with the right of survivorship at common law is counted as a resource unless it is exempt property or is unsaleable.

6. Ownership of other real property generally precludes eligibility. Exceptions to this provision are: (i) when the equity value of the property, plus all other resources, does not exceed the appropriate resource limitation; (ii) the property is smaller than the county or city zoning ordinances allow for home sites or building purposes, or the property has less than the amount of road frontage required by the county or city for building purposes and adjoining land owners will not buy the property; or (iii) the property has no access, or the only access is through the exempted home site; or (iv) the property is contiguous to the recipient's home site and the survey expenses required for its sale reduce the value of such property, plus all other resources, below applicable resource limitations; or (v) the property cannot be sold after a reasonable effort to sell it has been made, as defined in 12VAC30-40-290.

C. Personal property.

1. Prepaid burial plans are counted as a resource since the money is refundable to the individual upon his request. Cemetery plots are not counted as resources. See 12VAC30-40-290.

2. Assets which can be liquidated such as cash, bank accounts, stocks, bonds, securities and deeds of trusts are considered resources.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-03-2.6105, eff. June 16, 1993; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 20, Issue 4, eff. December 3, 2003; Volume 32, Issue 26, eff. September 21, 2016.

12VAC30-40-250. Standards for optional state supplementary payments.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-03-2.6106, eff. July 1, 1987; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 33, Issue 19, eff. June 29, 2017.

12VAC30-40-260. Income levels for 1902(f) states; categorically needy who are covered under requirements more restrictive than SSI.

The SSI income levels for an individual or couple, as appropriate, are used. See 12VAC30-40-230.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-03-6107, eff. April 30, 1985; amended, Virginia Register Volume 12, Issue 2, eff. November 15, 1995.

12VAC30-40-270. Resource standards for 1902(f) states; categorically needy.

The Commonwealth does not apply more restrictive resource standards. See 12VAC30-40-230.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-03-2.6108; eff April 30, 1985; amended, Virginia Register Volume 12, Issue 2, eff. November 15, 1995.

12VAC30-40-280. More liberal income disregards.

A. For ADC-related medically needy cases, any individual or family applying for or receiving assistance shall be granted an income exemption consistent with the Social Security Act (Act) (§§ 1902(a)(10)(A)(ii)(VIII), (IX) and 1902(a)(10)(C)(ii)(I)). Any interest earned on one interest-bearing savings or investment account per assistance unit not to exceed $5,000, if the applicant, applicants, recipient or recipients designate that the account is reserved for purposes related to self-sufficiency, shall be exempt when determining eligibility for medical assistance for so long as the funds and interest remain on deposit in the account. For purposes of this section, "purposes related to self-sufficiency" shall include (i) paying for tuition, books, and incidental expenses at any elementary, secondary, or vocational school, or any college or university; (ii) for making down payment on a primary residence; or (iii) for establishment of a commercial operation that is owned by a member of the Medicaid assistance unit.

B. For aged, blind, and disabled individuals, both categorically and medically needy, with the exception of the special income level group of institutionalized individuals, the Commonwealth of Virginia shall disregard the value of in-kind support and maintenance when determining eligibility. In-kind support and maintenance means food, clothing, or shelter or any combination of these provided to an individual.

C. For all medically needy children covered under the family and children covered groups, (§§ 1902(a)(10)(A)(ii)(VIII), 1902(a)(10)(C)(ii)(I), and 1905(n) of the Act), the Commonwealth will disregard all earned income of a child under the age of 19 years who is a student.

D. For all medically needy individuals covered under the family and children covered groups (§§ 1902(a)(10)(A)(ii)(VIII), 1902(a)(10)(C)(ii)(I), and 1905(n) of the Act), the Commonwealth will disregard the fair market value of all in-kind support and maintenance as income in determining financial eligibility. In-kind support and maintenance means food, clothing or shelter or any combination of these provided to an individual.

E. Working individuals with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XV) of the Act who wish to increase their earnings while maintaining eligibility for Medicaid must establish Work Incentive (WIN) accounts (see 12VAC30-40-290).

1. The Commonwealth shall disregard any increase in the amount of unearned income in Social Security Disability Insurance (SSDI) payment resulting from employment as a worker with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XVI) of the Act, or as a result of a cost of living adjustment (COLA) to the SSDI payment if this additional amount of unearned income in SSDI payment from work or COLA, or both, is deposited into the individual's designated WIN account.

2. The Commonwealth shall disregard any amount of unearned income of an enrollee as a result of the receipt of unemployment insurance benefits due to loss of employment through no fault of his own if this unearned income from unemployment insurance payments is deposited into the individual's designated WIN account. This disregard shall only apply while an enrollee is in the six-month safety net, or "grace" period.

3. The Commonwealth shall disregard earned income up to $75,000 for workers with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XV) of the Act. To be eligible for this earned income disregard, the income is subject to the following provisions:

a. Only earnings that are deposited into a Work Incentive (WIN) account can be disregarded for eligibility purposes.

b. All funds deposited and their source will be identified and registered with the department, for which prior approval has been obtained from the department, and for which the owner authorizes regular monitoring and reporting of these earnings and other information deemed necessary by the department for the proper administration of this provision.

c. Income from the individual's spouse, or if the individual is younger than 21 years of age, the individual's parents with whom he lives, will not be deemed to an applicant for MEDICAID WORKS or to an existing enrollee in MEDICAID WORKS when determining whether or not the individual meets the financial eligibility requirements for eligibility under this section.

F. For aged, blind and disabled individuals, both categorically and medically needy, with the exception of the special income level group of institutionalized individuals, the Commonwealth of Virginia shall disregard the value of income derived from temporary employment with the United States Census Bureau for a decennial census.

G. For all medically needy individuals covered under the family and children covered groups (§§ 1902(a)(10)(A)(i)(I), 1902(a)(10)(A)(i)(III), 1902(a)(10)(A)(i)(IV), 1902(a)(10)(A)(i)(V), 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(VII), 1902(a)(10)(A)(ii)(VIII), 1902(a)(10)(C)(ii)(I), and 1905(n) of the Act), the Commonwealth will disregard income derived from the temporary employment with the U.S. Census Bureau for a decennial census.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-03-2.6108.1, eff. March 9, 1995; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 18, eff. July 1, 2002; Volume 18, Issue 23, eff. September 1, 2002; Volume 20, Issue 4, eff. December 3, 2003; Volume 20, Issue 22, eff. September 25, 2004; Volume 25, Issue 11, eff. March 19, 2009; Volume 25, Issue 21, eff. July 23, 2009; Volume 30, Issue 5, eff. December 19, 2013; Volume 33, Issue 21, eff. July 27, 2017.

12VAC30-40-290. More liberal methods of treating resources under §1902(r)(2) of the Act: §1902(f) states.

A. Resources to meet burial expenses. Resources set aside to meet the burial expenses of an applicant or recipient or that individual's spouse are excluded from countable assets. In determining eligibility for benefits for individuals, disregarded from countable resources is an amount not in excess of $3,500 for the individual and an amount not in excess of $3,500 for his spouse when such resources have been set aside to meet the burial expenses of the individual or his spouse. The amount disregarded shall be reduced by:

1. The face value of life insurance on the life of an individual owned by the individual or his spouse if the cash surrender value of such policies has been excluded from countable resources; and

2. The amount of any other revocable or irrevocable trust, contract, or other arrangement specifically designated for the purpose of meeting the individual's or his spouse's burial expenses.

B. Cemetery plots. Cemetery plots are not counted as resources regardless of the number owned.

C. Life rights. Life rights to real property are not counted as a resource. The purchase of a life right in another individual's home is subject to transfer of asset rules. See 12VAC30-40-300.

D. Reasonable effort to sell.

1. For purposes of this section, "current market value" is defined as the current tax assessed value. If the property is listed by a realtor, then the realtor may list it at an amount higher than the tax assessed value. In no event, however, shall the realtor's list price exceed 150% of the assessed value.

2. A reasonable effort to sell is considered to have been made:

a. As of the date the property becomes subject to a realtor's listing agreement if:

(1) It is listed at a price at current market value; and

(2) The listing realtor verifies that it is unlikely to sell within 90 days of listing given the particular circumstances involved (e.g., owner's fractional interest; zoning restrictions; poor topography; absence of road frontage or access; absence of improvements; clouds on title, right of way or easement; local market conditions);

b. When at least two realtors refuse to list the property. The reason for refusal must be that the property is unsaleable at current market value. Other reasons for refusal are not sufficient; or

c. When the applicant has personally advertised his property at or below current market value for 90 days by use of a "Sale By Owner" sign located on the property and by other reasonable efforts, such as newspaper advertisements, or reasonable inquiries with all adjoining landowners or other potential interested purchasers.

3. Notwithstanding the fact that the recipient made a reasonable effort to sell the property and failed to sell it, and although the recipient has become eligible, the recipient must make a continuing reasonable effort to sell by:

a. Repeatedly renewing any initial listing agreement until the property is sold. If the list price was initially higher than the tax-assessed value, the listed sales price must be reduced after 12 months to no more than 100% of the tax-assessed value.

b. In the case where at least two realtors have refused to list the property, the recipient must personally try to sell the property by efforts described in subdivision 2 c of this subsection for 12 months.

c. In the case of a recipient who has personally advertised his property for a year without success (the newspaper advertisements and "for sale" sign do not have to be continuous; these efforts must be done for at least 90 days within a 12-month period), the recipient must then:

(1) Subject his property to a realtor's listing agreement at price or below current market value; or

(2) Meet the requirements of subdivision 2 b of this subsection, which are that the recipient must try to list the property and at least two realtors refuse to list it because it is unsaleable at current market value; other reasons for refusal to list are not sufficient.

4. If the recipient has made a continuing effort to sell the property for 12 months, then the recipient may sell the property between 75% and 100% of its tax assessed value and such sale shall not result in disqualification under the transfer of property rules. If the recipient requests to sell his property at less than 75% of assessed value, he must submit documentation from the listing realtor, or knowledgeable source if the property is not listed with a realtor, that the requested sale price is the best price the recipient can expect to receive for the property at this time. Sale at such a documented price shall not result in disqualification under the transfer of property rules. The proceeds of the sale will be counted as a resource in determining continuing eligibility.

5. Once the applicant has demonstrated that his property is unsaleable by following the procedures in subdivision 2 of this subsection, the property is disregarded in determining eligibility starting the first day of the month in which the most recent application was filed, or up to three months prior to this month of application if retroactive coverage is requested and the applicant met all other eligibility requirements in the period. A recipient must continue his reasonable efforts to sell the property as required in subdivision 3 of this subsection.

E. Automobiles. Ownership of one motor vehicle does not affect eligibility. If more than one vehicle is owned, the individual's equity in the least valuable vehicle or vehicles must be counted. The value of the vehicles is the wholesale value listed in the National Automobile Dealers Official Used Car Guide (NADA) Book, Eastern Edition (update monthly). In the event the vehicle is not listed, the value assessed by the locality for tax purposes may be used. The value of the additional motor vehicles is to be counted in relation to the amount of assets that could be liquidated that may be retained.

F. Life, retirement, and other related types of insurance policies. Life, retirement, and other related types of insurance policies with face values totaling $1,500 or less on any one person 21 years old and older are not considered resources. When the face values of such policies of any one person exceed $1,500, the cash surrender value of the policies is counted as a resource.

G. Long-term care partnership insurance policy (partnership policy). Resources equal to the amount of benefits paid on the insured's behalf by the long-term care insurer through a Virginia issued long-term care partnership insurance policy shall be disregarded. A long-term care partnership insurance policy shall meet the following requirements:

1. The policy is a qualified long-term care partnership insurance policy as defined in § 7702B(b) of the Internal Revenue Code of 1986.

2. The policy meets the requirements of the National Association of Insurance Commissioners (NAIC) Long-Term Care Insurance Model Regulation and Long-Term Care Insurance Model Act as those requirements are set forth in § 1917(b)(5)(A) of the Social Security Act (42 USC § 1396p).

3. The policy was issued no earlier than May 1, 2007.

4. The insured individual was a resident of a partnership state when coverage first became effective under the policy. If the policy is later exchanged for a different long-term care policy, the individual was a resident of a partnership state when coverage under the earliest policy became effective.

5. The policy meets the inflation protection requirements set forth in § 1917(b)(1)(C)(iii)(IV) of the Social Security Act.

6. The Insurance Commissioner requires the issuer of the partnership policy to make regular reports to the federal Secretary of Health and Human Services that include notification of the date benefits provided under the policy were paid and the amount paid, the date the policy terminates, and such other information as the secretary determines may be appropriate to the administration of such partnerships. Such information shall also be made available to the Department of Medical Assistance Services upon request.

7. The state does not impose any requirement affecting the terms or benefits of a partnership policy that the state does not also impose on nonpartnership policies.

8. The policy meets all the requirements of the Bureau of Insurance of the State Corporation Commission described in 14VAC5-200.

H. (Reserved.)

I. Resource exemption for Aid to Dependent Children related medically needy (§ 1902(a)(10)(C) of the Act). For ADC-related medically needy cases, any individual or family applying for or receiving assistance may have or establish one interest-bearing savings or investment account per assistance unit not to exceed $5,000 if the applicant, applicants, recipient or recipients designate that the account is reserved for purposes related to self-sufficiency. Any funds deposited in the account shall be exempt when determining eligibility for medical assistance for so long as the funds and interest remain on deposit in the account. Any amounts withdrawn and used for purposes related to self-sufficiency shall be exempt. For purposes of this section, purposes related to self-sufficiency shall include, but are not limited to, (i) paying for tuition, books, and incidental expenses at any elementary, secondary, or vocational school, or any college or university; (ii) for making down payment on a primary residence; or (iii) for establishment of a commercial operation that is owned by a member of the medical assistance unit.

J. Disregard of resources. The Commonwealth of Virginia will disregard all resources for categorically needy children, pregnant women, and caretaker relatives covered under §§ 1902(a)(10)(A)(i)(I), 1902(a)(10)(A)(i)(III), 1902(a)(10)(A)(i)(IV), 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(VII), 1902(a)(10)(A)(ii)(IV), 1902(a)(10)(A)(ii)(VIII), 1931, and 1905(n) of the Social Security Act.

K. Household goods and personal effects. The Commonwealth of Virginia will disregard the value of household goods and personal effects. Household goods are items of personal property customarily found in the home and used in connection with the maintenance, use and occupancy of the premises as a home. Examples of household goods are furniture, appliances, televisions, carpets, cooking and eating utensils and dishes. Personal effects are items of personal property that are worn or carried by an individual or that have an intimate relation to the individual. Examples of personal property include clothing, jewelry, personal care items, prosthetic devices and educational or recreational items such as books, musical instruments, or hobby materials.

L. Determining eligibility based on resources. When determining Medicaid eligibility, an individual shall be eligible in a month if his countable resources were at or below the resource standard on any day of such month.

M. Working individuals with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XV) of the Act who wish to increase their personal resources while maintaining eligibility for Medicaid shall establish Work Incentive (WIN) accounts. The Commonwealth will disregard up to the current annual SSI (Social Security Act, § 1619(b)) threshold amount (as established for Virginia by the Social Security Administration) held in WIN accounts for workers with disabilities eligible for assistance under § 1902(a)(10)(A)(ii)(XV) of the Act. To be eligible for this resource disregard, WIN accounts are subject to the following provisions:

1. Deposits to this account shall derive solely from the individual's income earned after electing to enroll in the Medicaid Buy-In (MBI) program.

2. The balance of this account shall not exceed the current annual SSI (Social Security Act § 1619(b)) threshold amount (as established for Virginia by the Social Security Administration).

3. This account will be held separate from nonexempt resources in accounts for which prior approval has been obtained from the department, and for which the owner authorizes regular monitoring and reporting including deposits, withdrawals, and other information deemed necessary by the department for the proper administration of this provision.

4. A spouse's resources will not be deemed to the applicant when determining whether or not the individual meets the financial eligibility requirements for eligibility under this section.

5. Resources accumulated in the Work Incentive account shall be disregarded in determining eligibility for aged, blind, and disabled Medicaid-covered groups for one year after the individual leaves the Medicaid Buy-In program.

6. In addition, excluded from the resource and asset limit include amounts deposited in the following types of IRS-approved accounts established as WIN accounts: retirement accounts, medical savings accounts, medical reimbursement accounts, education accounts and independence accounts. Assets retained in these WIN accounts shall be disregarded for all future Medicaid eligibility determinations for aged, blind, or disabled Medicaid-covered groups.

N. For all aged, blind, or disabled individuals, both categorically needy and medically needy, the Commonwealth shall disregard as resources amounts received as payment for involuntary sterilization under the Virginia Eugenical Sterilization Act, beyond the allowable nine-month exclusion by the SSI program's resource methodologies.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-03-2.6108.2, eff January 26, 1994; amended, Virginia Register Volume 11, Issue 10, eff March 9, 1995; Volume 15, Issue 18, eff. July 1, 1999; Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 18, eff. July 1, 2002; Volume 20, Issue 4, eff. December 3, 2003; Volume 20, Issue 22, eff. September 25, 2004; Volume 22, Issue 23, eff. August 23, 2006; Volume 23, Issue 14, eff. September 1, 2007; Volume 25, Issue 21, eff. July 23, 2009; Volume 33, Issue 19, eff. June 15, 2017; Volume 33, Issue 21, eff. July 27, 2017.

12VAC30-40-300. Transfer of resources.

The agency provides for the denial of eligibility by reason of disposal of resources for less than fair market value. This section includes procedures applicable to all transfers of resources.

A. Except as noted below, the criteria for determining the period of ineligibility are the same as criteria specified in § 1613(c) of the Social Security Act (Act): Transfer of resources other than the home of an individual who is an inpatient in a medical institution.

1. The agency uses a procedure that provides for a total period of ineligibility greater than 24 months for individuals who have transferred resources for less than fair market value when the uncompensated value of disposed of resources exceeds $12,000. This period bears a reasonable relationship to the uncompensated value of the transfer. The computation of the period and the reasonable relationship of this period to the uncompensated value are described as follows:

This transfer of resources rule includes the transfer of the former residence of an inpatient in a medical institution.

2. The agency has provisions for waiver of denial of eligibility in any instance where the state determines that a denial would work an undue hardship.

B. Other than those procedures specified elsewhere in this section, the procedures for implementing denial of eligibility by reason of disposal of resources for less than fair market value are as follows:

1. If the uncompensated value of the transfer is $12,000 or less: the individual is ineligible for two years from the date of the transfer.

2. If the uncompensated value of the transfer is more than $12,000: the individual is ineligible two years, plus an additional two months for every $1,000 or part thereof of uncompensated value over $12,000, from the date of transfer.

C. Property transfer. An applicant for or recipient of Medicaid is ineligible for Medicaid if he transferred or otherwise disposed of his legal equitable interest in real or personal property for less than fair market value. Transfer of property precludes eligibility for two years from the date of the transfer if the uncompensated value of the property was $12,000 or less. If the uncompensated value was over $12,000 an additional two months of ineligibility will be added for each $1,000 of additional uncompensated value (see the table in subdivision 7 of this subsection). "Uncompensated value" means the current market value of the property, or equity in the property, at the time it was transferred, less the amount of compensation (money, goods, service, etc.) received for the property.

Exceptions to this provision are:

1. When the transfer was not made with the intent of establishing or retaining eligibility for Medicaid or SSI. Any transfer shall be presumed to have been for the purposes of establishing or retaining eligibility for Medicaid or SSI unless the applicant/recipient furnishes convincing evidence to establish that the transfer was exclusively for some other purpose.

a. The applicant/recipient has the burden of establishing, by objective evidence of facts rather than statement of subjective intent, that the transfer was exclusively for another purpose.

b. Such evidence shall include evidence that adequate resources were available at the time of the transfer for the applicant/recipient's support and medical care including nursing home care, considering his age, state of health, and life expectancy.

c. The declaration of another purpose shall not be sufficient to overcome this presumption of intent.

d. The establishment of the fact that the applicant/recipient did not have specific knowledge of Medicaid or SSI eligibility policy is not sufficient to overcome the presumption of intent.

2. Retention of the property would have no effect on eligibility unless the property is a residence of an individual in a nursing home for a temporary period.

3. When transfer of the property resulted in compensation (in money, goods, or services) to the applicant/recipient that approximated the equity value of the property.

4. When the receiver of the property has made payment on the cost of the applicant/recipient's medical care that approximates the equity value of the property.

5. When the property owner has been a victim of another person's actions, except those of a legal guardian, committee, or power-of-attorney, who obtained or disposed of the property without the applicant/recipient's full understanding of the action.

6. When prior to October 1, 1982, the Medicaid applicant transferred a prepaid burial account (plan) that was valued at less than $1,500 for the purpose of retaining eligibility for SSI and was found ineligible for Medicaid solely for that reason. The applicant, after reapplying, may be eligible regardless of the earlier transfer of a prepaid burial account if the applicant currently meets all other eligibility criteria.

7. When the property is transferred into an irrevocable trust designated solely for the burial of the transferor or his spouse. The amount transferred into the irrevocable burial trust, together with the face value of life insurance and any other irrevocable funeral arrangements, shall not exceed $2,000 prior to July 1, 1988, and shall not exceed $2,500 after July 1, 1988.

D. The preceding policy applies to eligibility determinations on and before June 30, 1988. The following policy applies to eligibility determinations on and after July 1, 1988.

1. The State plan provides for a period of ineligibility for nursing facility services, equivalent services in a medical institution, and home and community-based services in the case of an institutionalized individual (as defined in paragraph (3) of § 1917(c) who, disposed of resources for less than fair market value, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual (if the individual is entitled to medical assistance under the State Plan on that date) or, if the individual is not entitled on the date of institutionalization, the date the individual applies for assistance while an institutionalized individual.

a. Thirty months; or

b. The total uncompensated value of the resources so transferred, divided by the average cost, to a private patient at the time of application, of nursing facility services in the state.

2. An individual shall not be ineligible for medical assistance by reason of subdivision 1 of this subsection to the extent that:

a. The resources transferred were a home and title to the home was transferred to:

(1) The spouse of such individual;

(2) A child of such individual who is under age 21 years, or is blind or disabled as defined in § 1614 of the Social Security Act;

(3) A sibling of such individual who has an equity interest in such home and who was residing in such individual's home for a period of at least one year immediately before the date the individual becomes an institutionalized individual; or

(4) A son or daughter of such individual (other than a child described in subdivision 2 a (2) of this subsection) who was residing in such individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual; and who (as determined by the state) provided care to such individual that permitted such individual to reside at home rather than in such an institution or facility.

b. The resources were transferred to (or to another for sole benefit of) the community spouse as defined in § 1924(h)(2) of the Social Security Act, or to the individual's child who is under age 21 years, or is blind or disabled as defined in § 1614 of the Social Security Act.

c. A satisfactory showing is made to the state (in accordance with any regulations promulgated by the Secretary of United States Department of Health and Human Services) that:

(1) The individual intended to dispose of the resources either at fair market value, or for other valuable consideration. To show intent to receive adequate compensation, the individual must provide objective evidence that:

(a) For real property, the individual made an initial and continuing effort to sell the property according to the "reasonable effort to sell" provisions of the Virginia Medicaid State Plan;

(b) For real or personal property, the individual made a legally binding contract that provided for receipt of adequate compensation in a specified form (goods, services, money, etc.) in exchange for the transferred property;

(c) An irrevocable burial trust of $2,500 or less was established on or after July 1, 1988, as compensation for the transferred money;

(d) An irrevocable burial trust over $2500 was established on or after July 1, 1988, and the individual provides objective evidence to show that all funds in the trust are for identifiable funeral services; or

(2) The resources were transferred exclusively for a purpose other than to qualify for medical assistance; the individual must provide objective evidence that the transfer was exclusively for another purpose and the reason for the transfer did not include possible or future Medicaid eligibility; or

(3) Consistent with § 1917(c)(2)(D), an institutionalized spouse who (or whose spouse) transferred resources for less than fair market value shall not be found ineligible for nursing facility service, for a level of care in a medical institution equivalent to that of nursing facility services, or for home and community-based services where the state determines that denial of eligibility would work an undue hardship under the provision of § 1917(c)(2)(D) of the Social Security Act.

3. In this section, the term "institutionalized individual" means an individual who is an inpatient in a nursing facility, or who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in § 1902 (a)(10)(A)(ii)(VI).

4. In this section, the individual's home is defined as the house and lot used as the principal residence and all contiguous property up to $5,000.

E. Transfers and trusts after August 10, 1993. The following policy applies to medical assistance provided for services furnished on or after October 1, 1993, with respect to assets disposed of after August 10, 1993, and before February 8, 2006. It also applies to trusts established after August 10, 1993.

1. Definitions.

"Assets" means, with respect to an individual, all income and resources of the individual and of the individual's spouse, including any income or resources that the individual or the individual's spouse is entitled to but does not receive because of action:

a. By the individual or the individual's spouse;

b. By a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or

c. By any person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

"Income" has the meaning given such term in § 1612 of the Social Security Act.

"Institutionalized individual" means an individual who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing faculty or who is described in § 1902(a)(10)(A)(ii)(VI) of the Social Security Act.

"Resources" has the meaning given such term in § 1613 of the Social Security Act, without regard (in the case of an institutionalized individual) to the exclusion described in subsection (a)(1) of such section.

2. Transfer of assets rule. An institutionalized individual who disposes of, or whose spouse disposes of, assets for less than fair market value on or after the look-back date specified in subdivision 2 b of this subsection shall be ineligible for nursing facility services, a level of care in any institution equivalent to that of nursing facility services and for home or community-based services furnished under a waiver granted under § 1915(c) of the Social Security Act.

a. Period of ineligibility. The ineligibility period shall begin on the first day of the first month during or after which assets have been transferred for less than fair market value and that does not occur in any other period of ineligibility under this section. The ineligibility period shall be equal to but shall not exceed the number of months derived by dividing:

(1) The total, cumulative uncompensated value of all assets transferred as defined in subdivision E 1 of this section on or after the look-back date specified in subdivision E 2 b of this section by

(2) The average monthly cost to a private patient of nursing facility services in the Commonwealth at the time of application for medical assistance.

b. Look-back date. The look-back date is a date that is 36 months (or 60 months in the case of payments from a trust or portions of a trust that are treated as assets disposed of by the individual pursuant to this section or subdivision 3 of this subsection) before the first date as of which the individual both is an institutionalized individual and has applied for medical assistance under the State Plan for Medical Assistance.

c. Exceptions. An individual shall not be ineligible for medical assistance by reason of this section to the extent that:

(1) The assets transferred were a home and title to the home was transferred to:

(a) The spouse of the individual;

(b) A child of the individual who is under age 21 years, or is blind or disabled as defined in § 1614 of the Social Security Act;

(c) A sibling of the individual who has an equity interest in the home and who was residing in the individual's home for a period of a least one year immediately before the date the individual becomes an institutionalized individual; or

(d) A son or daughter of the individual (other than a child described in subdivision 2 C (1) (b) of this subsection) who was residing in the individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who provided care to the individual that permitted the individual to reside at home rather than in an institution or facility.

(2) The assets:

(a) Were transferred to the individual's spouse or to another person for the sole benefit of the individual's spouse;

(b) Were transferred from the individual's spouse to another for the sole benefit of the individual's spouse;

(c) Were transferred to the individual's child who is under age 21 years or who is disabled as defined in § 1614 of the Social Security Act or to a trust (including a trust described in subdivision 3 g of this subsection) established solely for the benefit of such child; or

(d) Were transferred to a trust (including a trust described in subdivision 3 g of this subsection) established solely for the benefit of an individual under age 65 years who is disabled as defined in § 1614(a)(3) of the Social Security Act.

(3) A satisfactory showing is made that:

(a) The individual intended to dispose of the assets either at fair market value, or for other valuable consideration;

(b) The assets were transferred exclusively for a purpose other than to qualify for medical assistance;

(c) All assets transferred for less than fair market value have been returned to the individual; or

(d) The Commonwealth determines that the denial of eligibility would work an undue hardship.

d. Assets held in common with another person. In the case of an asset held by an individual in common with another person or persons in a joint tenancy, tenancy in common, or other arrangement recognized under state law, the asset (or the affected portion of such asset) shall be considered to be transferred by such individual when any action is taken, either by such individual or by any other person, that reduces or eliminates such individual's ownership or control of such asset.

e. Transfers by both spouses. In the case of a transfer by the spouse of an individual that results in a period of ineligibility for medical assistance, the Commonwealth shall apportion the period of ineligibility (or any portion of the period) among the individual and the individual's spouse if the spouse otherwise becomes eligible for medical assistance under the State Plan.

3. For trusts created after August 10, 1993. For purposes of determining an individual's eligibility for, or amount of, medical assistance benefits, subject to subdivision 3 g of this subsection, these rules shall apply.

a. Trust defined. The term "trust" includes any legal instrument or device that is similar to a trust but includes an annuity only to such extent and in such manner as the U.S. Secretary of Health and Human Services specifies for purposes of administration of § 1917(c) or (d) of the Social Security Act.

b. Creation of trust defined. For purposes of this subsection, an individual shall be considered to have established a trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established the trusts other than by will:

(1) The individual;

(2) The individual's spouse;

(3) A person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse;

(4) A person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

c. Proportional interest in a trust. In the case of a trust the corpus of which includes assets of an individual (as determined under subdivision 3 b of this subsection) and assets of any other person or persons, the provision of this section shall apply to the portion of the trust attributable to the assets of the individual.

d. Affected trust. Subject to subdivision 3 g of this subsection, this section shall apply without regard to:

(1) The purposes for which a trust is established;

(2) Whether the trustee has or exercises any discretion under the trust;

(3) Any restrictions on when or whether distributions may be made from the trust; or

(4) Any restrictions on the use of distributions from the trust.

e. Revocable trusts. In the case of a revocable trust,

(1) The corpus of the trust shall be considered resources available to the individual;

(2) Payments from the trust to or for the benefit of the individual shall be considered income of the individual; and

(3) Any other payments from the trust shall be considered assets disposed of by the individual for the purposes of subdivision E 2 of this section.

f. Irrevocable trust. In the case of an irrevocable trust,

(1) If there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income:

(a) To or for the benefit of the individual, shall be considered income of the individual; and

(b) For any other purpose, shall be considered a transfer of assets by the individual subject to subdivision E 2 of this section; and

(2) Any portion of the trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of subdivision E 2 of this section, and the value of the trust shall be determined for purposes of such section by including the amount of any payments made from such portion of the trust after such date.

g. Exceptions. This section shall not apply to any of the following trusts:

(1) A trust containing the assets of an individual under age 65 years who is disabled (as defined in § 1614(a)(3) of the Social Security Act) and that is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual or a court if the Commonwealth will receive all amounts remaining in the trust upon the death of the individual up to an amount equal to the total medical assistance paid on behalf of the individual under this State Plan.

(2) A trust containing the assets of an individual who is disabled (as defined in § 1614(a)(3) of the Social Security Act) that meets all of the following conditions:

(a) The trust is established and managed by a nonprofit association.

(b) A separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds, the trust pools these accounts.

(c) Accounts in the trust are established solely for the benefit of individuals who are disabled (as defined in § 1614(a)(3) of the Social Security Act) by the parent, grandparent, or legal guardian of such individuals, by such individuals, or by a court.

(d) To the extent that amounts remaining in the beneficiary's account upon the death of the beneficiary are not retained by the trust, the trust pays to the Commonwealth from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under this State Plan.

F. Transfers made on or after February 8, 2006. The following policy applies to medical assistance provided for services furnished on or after February 8, 2006, with respect to assets disposed of on or after February 8, 2006.

1. Definitions.

"Assets" means, with respect to an individual, all income and resources of the individual and of the individual's spouse, including any income or resources that the individual or the individual's spouse is entitled to but does not receive because of action:

a. By the individual or the individual's spouse;

b. By a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or

c. By any person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

The term "assets" includes the purchase of a life estate interest in another individual's home unless the purchaser resides in the home for a period of at least one year after the date of the purchase. The term "assets" also includes funds used to purchase a promissory note, loan, or mortgage unless such note, loan, or mortgage:

a. Has a repayment term that is actuarially sound (determined in accordance with actuarial publications of the Social Security Administration);

b. Provides for payments to be made in equal amounts during the term of the loan with no deferral and no balloon payments made; and

c. Prohibits the cancellation of the balance upon the death of the lender.

In the case of a promissory note, loan, or mortgage that does not satisfy the requirements of subdivisions a through c of this definition, the value of such note, loan, or mortgage shall be the outstanding balance due as of the date of the individual's application for medical assistance.

"Income" has the meaning given such term in § 1612 of the Social Security Act.

"Institutionalized individual" means an individual who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in § 1902(a)(10)(A)(ii)(VI) of the Social Security Act.

"Resources" has the meaning given such term in § 1613 of the Social Security Act, without regard (in the case of an institutionalized individual) to the exclusion described in subsection (a)(1) of such section.

2. Transfer of assets rule. An institutionalized individual who disposes of, or whose spouse disposes of, assets for less than fair market value on or after the look-back date specified in subdivision 2 b of this subsection shall be ineligible for nursing facility services, a level of care in any institution equivalent to that of nursing facility services, and for home or community-based services furnished under a waiver granted under of § 1915(c) of the Social Security Act.

a. Period of ineligibility. The ineligibility period shall begin on the first day of a month during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance under the State Plan and would otherwise be receiving Medicaid-covered institutional level care based on an approved application for such care but for the application of the penalty period, whichever is later, and that does not occur in any other period of ineligibility under this section. The ineligibility period shall be equal to but shall not exceed the number of months, including any fractional portion of a month, derived by dividing:

(1) The total, cumulative uncompensated value of all assets transferred as defined in subdivision 1 of this subsection on or after the look-back date specified in subdivision 2 b of this subsection by

(2) The average monthly cost to a private patient of nursing facility services in the Commonwealth at the time of application for medical assistance.

b. Look-back date. The look-back date is a date that is 60 months before the first date the individual is both an institutionalized individual and has applied for medical assistance under the State Plan for Medical Assistance.

c. Exceptions. An individual shall not be ineligible for medical assistance by reason of this section to the extent that:

(1) The assets transferred were a home and title to the home was transferred to:

(a) The spouse of the individual;

(b) A child of the individual who is under age 21 years, or is blind or disabled as defined in § 1614 of the Social Security Act;

(c) A sibling of the individual who has an equity interest in the home and who was residing in the individual's home for a period of a least one year immediately before the date the individual becomes an institutionalized individual; or

(d) A son or daughter of the individual (other than a child described in subdivision 2 b c (1) (b) of this subsection) who was residing in the individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who provided care to the individual that permitted the individual to reside at home rather than in an institution or facility.

(2) The assets:

(a) Were transferred to the individual's spouse or to another person for the sole benefit of the individual's spouse;

(b) Were transferred from the individual's spouse to another for the sole benefit of the individual's spouse;

(c) Were transferred to the individual's child who is under age 21 years or who is disabled as defined in § 1614 of the Social Security Act, or to a trust (including a trust described in subdivision E 3 g of this section) established solely for the benefit of such child; or

(d) Were transferred to a trust (including a trust described in subdivision E 3 g of this section) established solely for the benefit of an individual under age 65 years who is disabled as defined in § 1614(a)(3) of the Social Security Act.

(3) A satisfactory showing is made that:

(a) The individual intended to dispose of the assets either at fair market value, or for other valuable consideration;

(b) The assets were transferred exclusively for a purpose other than to qualify for medical assistance;

(c) All assets transferred for less than fair market value have been returned to the individual; or

(d) The Commonwealth determines that the denial of eligibility would work an undue hardship.

d. Assets held in common with another person. In the case of an asset held by an individual in common with another person or persons in a joint tenancy, tenancy in common, or other arrangement recognized under state law, the asset (or the affected portion of such asset) shall be considered to be transferred by such individual when any action is taken, either by such individual or by any other person, that reduces or eliminates such individual's ownership or control of such asset.

e. Transfers by both spouses. In the case of a transfer by the spouse of an individual that results in a period of ineligibility for medical assistance, the Commonwealth shall apportion the period of ineligibility (or any portion of the period) among the individual and the individual's spouse if the spouse otherwise becomes eligible for medical assistance under the State Plan.

3. Annuities: The following shall govern annuities:

a. For purposes of this section, the purchase of an annuity by the institutionalized spouse or the community spouse will be treated as the disposal of an asset for less than fair market value unless:

(1) The state is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the annuitant; or

(2) The state is named as a remainder beneficiary in the second position after the community spouse or minor or disabled child and is named in the first position if such spouse or a representative of such child disposes of any remainder for less than fair market value.

b. The purchase of annuity by or on behalf of an annuitant who has applied for medical assistance for long-term care services will be considered a transfer of assets for less than fair market value unless:

(1) The annuity is described in subsection (b), individual retirement annuities, or (q), deemed IRAs under qualified employer plans, of § 408 of the Internal Revenue Code of 1986; or

(2) Purchased with the proceeds from:

(a) An account or trust described in subsection (a), individual retirement account, (c), accounts established by employers and certain associations of employees, or (p), simple retirement accounts, of § 408 of such Code;

(b) A simplified employee pension (within the meaning of § 408(k) of such Code); or

(c) A Roth IRA described in § 408A of such Code; or

(3) The annuity is:

(a) Irrevocable and nonassignable;

(b) Is actuarially sound (as determined by Social Security Administration publications); and

(c) Provides for payments in equal amounts during the term of the annuity with no deferral and no balloon payments made.

c. For annuities purchased prior to February 8, 2006, certain transactions occurring on or after that date shall make an annuity subject to this section including any action taken by the individual that changes the course of payment made by the annuity or the treatment of the income or principal of the annuity. The Commonwealth shall take such changes into account in determining the amount of the state's obligation for medical assistance or in the individual's eligibility for such assistance.

(1) These actions include additions of principal, elective withdrawals, requests to change the distribution of the annuity, elections to annuitize the contract, and similar actions.

(2) Changes that occur based on the terms of the annuity that existed prior to February 8, 2006, and that do not require a decision, election, or action to take effect shall not be subject to this section.

(3) Changes beyond the control of the individual, such as a change in law, in the policies of the insurer, or in the terms based on other factors, shall not cause the annuity to be subject to this section.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-03-2.6109, eff. October 1, 1993; amended, Virginia Register Volume 22, Issue 23, eff. August 23, 2006; Volume 33, Issue 21, eff. July 27, 2017.

12VAC30-40-310. [Reserved]. (Reserved)

12VAC30-40-320. Consideration of Medicaid qualifying trust; undue hardship.

Condition or Requirement

The following criteria will be used to determine whether the agency will not count the funds in a trust as specified in 12VAC30-40-110, because it would work an undue hardship for categorically and medically needy individuals:

The Commonwealth does not, at the present time, recognize undue hardships in cases of qualifying trusts.

1. In determining eligibility for Medicaid the maximum amount of payments permitted under the terms of a "Medicaid qualifying trust" to be distributed to the grantor, if the trustee exercised his discretion to the fullest extent possible, shall be considered available in determining the grantor's eligibility for Medicaid.

A "Medicaid qualifying trust" is a trust, or similar legal device, established (other than by will) by an individual (or an individual's spouse) under which the individual may be beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.

The requirements of this section shall apply without regard to:

A. Whether or not the Medicaid qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for Medicaid; or

B. Whether or not the trustee(s) exercises his discretion to distribute any payments to the individual.

This provision shall not apply to any trust or initial trust decree established prior to April 7, 1986, solely for the benefit of a mentally retarded individual who resides in an intermediate care facility for the mentally retarded.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-03-2.6110, eff. June 16, 1993.

12VAC30-40-330. Cost effectiveness methodology for COBRA continuation beneficiaries.

Cost effectiveness methodology for COBRA continuation beneficiaries is not applicable.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-03-2.6111, eff. November 15, 1995.

12VAC30-40-340. Compliance with § 1924 and OBRA 90.

a. Income and Resource eligibility policies used to determine eligibility for institutionalized spouses who have spouses living in the community are consistent with § 1924.

b. In the determination of resource eligibility the state resource standard is $12,000 adjusted annually in accordance with § 1924(g).

c. An institutionalized spouse who (or whose spouse) has excess resources shall not be found ineligible under Title XIX of the Social Security Act, per § 1924(c)(3)(C), where the state determines that denial of eligibility on the basis of having excess resources would work an undue hardship.

d. State community property laws do not apply for purposes of post-eligibility treatment of income.

e. The spousal share is determined at the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse.

Statutory Authority

Social Security Act Title XIX; 42 CFR 430 to end; all other applicable statutory and regulatory sections.

Historical Notes

Derived from VR460-03-2.6113, eff. October 1, 1991.

12VAC30-40-345. (Repealed.)

Historical Notes

Derived from Virginia Register Volume 16, Issue 15, eff. May 10, 2000; amended, Virginia Register Volume 17, Issue 3, eff. November 22, 2000; Volume 18, Issue 18, eff. July 1, 2002; Volume 20, Issue 22, eff. September 25, 2004; Volume 25, Issue 11, eff. March 19, 2009; repealed, Virginia Register Volume 33, Issue 21, eff. July 27, 2017.

12VAC30-40-347. Asset verification system.

A. The agency is providing for the verification of assets for purposes of determining or redetermining Medicaid eligibility for aged, blind, and disabled Medicaid applicants and recipients using an asset verification system (AVS) that meets the following minimum requirements:

1. The request and response system is electronic.

a. Verification inquiries are sent electronically via the Internet or similar means from the agency to the financial institution.

b. The system is not based on mailing paper-based requests.

c. The system has the capability to accept responses electronically.

2. The system is secure, based on a recognized industry standard of security (e.g., as defined by the U.S. Commerce Department's National Institute of Standards and Technology (NIST)).

3. The system establishes and maintains a database of financial institutions that participate in the agency's AVS.

4. Verification requests are also sent to financial institutions other than those identified by applicants and recipients, based on some logic such as geographic proximity to the applicant's home address, or other reasonable factors whenever the agency determines that such requests are needed to determine or redetermine the individual's eligibility.

5. The verification request must include a request for information on both open and closed accounts, going back for a period up to five years, as determined by the Department of Medical Assistance Services.

B. System development.

1. The agency is hiring a contractor to develop an AVS.

2. AVS implementation information: Virginia is implementing a web-based asset verification system (AVS) as part of its Eligibility Modernization Project for implementing the mandatory provisions of health care reform. The selected contractors will provide an AVS that meets all requirements of the Centers for Medicare and Medicaid Services and § 1940 of the Social Security Act. It will be secure and meet all Medicaid Information Technology Architecture (MITA) standards.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 7, eff. January 3, 2013.

12VAC30-40-348. Adult group individual income-based determinations.

A. Methodology for identification of applicable federal medical assistance percentages (FMAP) rates. DMAS will determine the appropriate FMAP rate for expenditures for individuals enrolled in the adult group described in 42 CFR 435.119 and receiving benefits in accordance with 42 CFR Part 440 Subpart C. The adult group FMAP methodology consists of two parts: an individual-based determination related to enrolled individuals and, as applicable, appropriate population-based adjustments.

B. Adult group individual income-based determinations. For individuals eligible in the adult group, the Commonwealth will make an individual income-based determination for purposes of the adult group FMAP methodology by comparing individual income to the relevant converted income eligibility standards in effect on December 1, 2009, and included in the Modified Adjusted Gross Income (MAGI) Conversion Plan (Part 2) approved by Centers for Medicare and Medicaid Services (CMS) on February 11, 2014. In general, and subject to any adjustments described in this section, under the adult group FMAP methodology, the expenditures of individuals with incomes below the relevant converted income standards for the applicable subgroup are considered as those for which the newly eligible FMAP is not available.

C. Population-based adjustments to the newly eligible population based on resource test, enrollment cap, or special circumstances.

1. The Commonwealth does not apply a resource proxy adjustment.

2. The Commonwealth does not apply an enrollment cap.

3. The Commonwealth does not apply a special circumstance adjustment.

4. The Commonwealth does not apply any additional adjustment to the adult group FMAP methodology.

D. Individuals previously eligible for Medicaid coverage through a § 1115 demonstration program or a mandatory or optional State Plan eligibility category will be transitioned to the new adult group described in 42 CFR 435.119 in accordance with a CMS-approved transition plan or a § 1902(e)(14)(A) waiver.

E. Applicability of special FMAP rates.

1. The Commonwealth does not meet the definition of an expansion state in 42 CFR 433.204(b).

2. The Commonwealth does not qualify for a temporary 2.2% increase in FMAP under 42 CFR 433.10(c)(7).

F. The Commonwealth attests to the following:

1. The application of the adult group FMAP methodology will not affect the timing or approval of any individual's eligibility for Medicaid.

2. The application of the adult group FMAP methodology will not be biased in such a manner as to inappropriately establish the numbers of, or medical assistance expenditures for, individuals determined to be newly or not newly eligible.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from Virginia Register Volume 38, Issue 12, eff. March 17, 2022.

Part V
State Supplementary Payments

12VAC30-40-350. Standards for optional state supplementary payments.

A. Aged, blind, and disabled recipients of optional state supplementary payments are eligible for medical assistance as categorically needy under this plan. The payments meet the four conditions specified in 45 CFR 248.2(d), that is, they are:

1. Regular, in cash, and based on need;

2. Available on a statewide basis;

3. Made to reasonable classifications of individuals who, except for the level of their income, would be eligible for an SSI payment; and

4. Equal to the difference between income and financial standards used to determine eligibility for the supplement.

B. A 15% differential above the maximum rate set forth in the appropriation act each year is established for residents in Planning District 8.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-02-2.6200; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-40-360. Treatment of entrance fees of individuals residing in continuing care retirement communities.

When determining eligibility for medical assistance, an individual's entrance fee in a continuing care retirement community or life care community that collects an entrance fee on admission from such individuals shall be considered a resource available to the individual to the extent that:

1. The individual has the ability to use the entrance fee, or the contract provides that the entrance fee may be used, to pay for care should other resources or income of the individual be insufficient to pay for such care;

2. The individual is eligible for a refund of any remaining entrance fee when the individual dies or terminates the continuing care retirement community or life care community contract and leaves the community; and

3. The entrance fee does not confer an ownership interest in the continuing care retirement community or life care community.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 22, Issue 23, eff. August 23, 2006.

12VAC30-40-370. Variations from the basic personal needs allowance.

For victims of Virginia's eugenical program, the Commonwealth shall, in addition to the basic personal needs allowance (PNA), increase the basic PNA by amounts received as payments for involuntary sterilization under the Virginia Eugenical Sterilization Act.

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from Virginia Register Volume 33, Issue 19, eff. June 15, 2017.