Administrative Code

Virginia Administrative Code
9/21/2021

Chapter 110. Eligibility and Appeals

Part I
Client Appeals
Subpart I
General

Article 1
Definitions

12VAC30-110-10. Definitions.

Subpart I
General

Article 1
Definitions

The following words and terms, when used in these regulations, shall have the following meanings unless the context clearly indicates otherwise:

"Action" means a termination of, suspension of, or reduction in covered benefits or services; a termination, suspension, or reduction in Medicaid eligibility; or an increase in beneficiary liability, including a determination that a beneficiary must incur a greater amount of medical expenses in order to establish income eligibility in accordance with 42 CFR 435.121(e)(4) or 42 CFR 435.831 or is subject to an increase in premiums or cost-sharing charges under Subpart A of 42 CFR Part 447. It also means (i) determinations by a skilled nursing facility or nursing facility to transfer or discharge a resident and (ii) an adverse determination made by a state with regard to the preadmission screening and resident review requirements of § 1919(e)(7) of the Social Security Act.

"Adverse determination" means a determination made in accordance with § 1919(b)(3)(F) or 1919(e)(7)(B) of the Social Security Act that the individual does not require the level of services provided by a nursing facility or that the individual does or does not require specialized services.

"Agency" means:

1. An agency that, on the department's behalf, makes determinations regarding applications for benefits provided by the department; or

2. The department itself.

"Appellant" means (i) an applicant for or recipient of medical assistance benefits from the department who seeks to challenge an action regarding his benefits or his eligibility for benefits and (ii) a nursing facility resident who seeks to challenge a transfer or discharge. Appellant also means an individual who seeks to challenge an adverse determination regarding services provided by a nursing facility.

"Date of action" means the intended date on which a termination, suspension, reduction, transfer, or discharge becomes effective. It also means the date of the determination made by a state with regard to the preadmission screening and annual resident review requirements of § 1919(e)(7) of the Social Security Act.

"Department" means the Department of Medical Assistance Services.

"Division" means the department's Appeals Division.

"Final decision" means a written determination by a hearing officer that is binding on the department, unless modified on appeal or review.

"Hearing" means the evidentiary hearing described in this chapter, conducted by a hearing officer employed by the department.

"Representative" means an attorney or agent who has been authorized to represent an appellant pursuant to these regulations.

"Send" means to deliver by mail or in electronic format consistent with 42 CFR 431.201 and 42 CFR 435.918.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.1, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995; Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.

Article 2
Appeal System

12VAC30-110-20. Appeals Division.

Article 2
Appeal System

A. The division maintains an appeals system that complies with all federal legal authority for appellants to challenge actions, as defined in 42 CFR 431.201, regarding services and benefits provided by the agency or a nursing facility. Appellants shall be entitled to a hearing before a hearing officer. See Subpart II (12VAC30-110-130 et seq.) of this chapter.

B. The appeals system shall be accessible to persons who are limited English proficient and persons who have disabilities, consistent with 42 CFR 435.905(b).

C. In accordance with 42 CFR 435.918, the agency makes electronic appeal correspondence available to applicants and recipients. Applicants and recipients may elect to receive appeal correspondence in electronic format or by regular mail and may change such election.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.2, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995; Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-30. Time limitation for appeals.

Hearing officer appeals shall be scheduled and conducted to comply with the time limitations for standard and expedited appeals imposed by federal regulations, unless:

1. The agency cannot reach a decision because the appellant requests a delay or fails to take a required action; or

2. There is an administrative or other emergency beyond the agency's control.

All instances in which there is a delay shall be documented in the appellant's record.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 1.3, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995; Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-35. Expedited appeals.

A. An appellant may request and the agency shall provide an expedited appeals process for claims for which the agency determines that the 90-day timeframe for conducting an appeal could jeopardize the individual's life, health, or ability to attain, maintain, or regain maximum function.

B. If an expedited appeal request is granted, the following timeframes for conducting the appeal apply from receipt of the appeal request:

1. Seventy-two hours for:

a. A claim related to services or benefits described in 42 CFR 431.220(a)(1);

b. A MCO, PIHP, or PAHP enrollee who is entitled to a hearing under Subpart F of 42 CFR Part 438;

c. An enrollee in a nonemergency medical transportation prepaid ambulatory health plan who has an action; and

d. An enrollee who is entitled to a hearing under Subpart B of 42 CFR Part 438.

2. Seven business days for:

a. Eligibility claims;

b. Nursing facility claims related to transfer or discharge; or

c. Nursing facility claims related to the agency's preadmission determination or annual resident review.

C. The department shall notify the individual whether the request is granted or denied as expeditiously as possible. Such notice may be provided orally or through the electronic means found in 12VAC30-110-130.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-40. Judicial review.

An appellant who believes a final decision as defined herein is incorrect may seek judicial review pursuant to The Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) and Part 2A, Rules of the Virginia Supreme Court.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.4, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995; Volume 25, Issue 14, eff. April 15, 2009.

Article 3
Representation

12VAC30-110-50. Right to representation.

Article 3
Representation

An appellant shall have the full right to representation by an attorney or agent at all stages of appeal.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 1.5, eff. October 1, 1993.

12VAC30-110-60. Designation of representative.

A. Agents. An agent must be designated in a written statement which is signed by the appellant. If the appellant is physically or mentally unable to sign a written statement, the division may allow a family member or other person acting on appellant's behalf to represent the appellant.

B. Attorneys. If the agent is an attorney or a paralegal working under the supervision of an attorney, a signed statement by such attorney or paralegal that he is authorized to represent the appellant prepared on the attorney's letterhead, shall be accepted as a designation of representation.

C. Substitution. A member of the same law firm as a designated representative shall have the same rights as the designated representative.

D. Revocation. An appellant may revoke representation by another person at any time. The revocation is effective when the department receives written notice from the appellant.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 1.6, eff. October 1, 1993.

Article 4
Notice and Appeal Rights

12VAC30-110-70. Notification of adverse agency action.

Article 4
Notice and Appeal Rights

The agency that takes action or makes an adverse determination shall inform the applicant or recipient in a written notice:

1. What action or adverse determination the agency intends to take and the effective date of such action;

2. A clear statement of the specific reasons supporting the intended action or adverse determination;

3. The specific regulations that support or the change in law that requires the action or adverse determination;

4. The right to request an evidentiary hearing, and the methods and time limits for doing so;

5. The right to request an expedited evidentiary hearing;

6. The circumstances under which benefits are continued if a hearing is requested (see 12VAC30-110-100); and

7. The right to representation.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.7, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-80. Advance notice.

When the agency plans to terminate, suspend, or reduce an individual's eligibility or covered services, the agency must send the notice described in 12VAC30-110-70 at least 10 days before the date of action, except as otherwise permitted by federal law in 42 CFR 431.213 and 42 CFR 431.214.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.8, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-90. Right to appeal.

An individual has the right to file an appeal when:

1. His application for benefits administered by the department is denied. However, if an application for State and Local Hospitalization coverage is denied because of a lack of funds which is confirmed by the hearing officer, there is no right to appeal;

2. The agency takes action or proposes to take action that will adversely affect, reduce, or terminate his receipt of benefits;

3. His request for a particular medical service is denied, suspended, reduced, or terminated, in whole or in part;

4. The agency fails to take an application and/or fails to act with reasonable promptness on his application for benefits or request for a particular medical service;

5. The agency takes action or proposes to take action regarding the recovery of applicable medical assistance payments from a decedent's estate;

6. The agency takes action or proposes to take action regarding the recovery of expenditures for services received by ineligible individuals;

7. The agency takes action or proposes to take action regarding the recovery of expenditures paid on behalf of individuals whose coverage was continued during the appeals process; or

8. Federal regulations require that a fair hearing be granted.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.9, eff. October 1, 1993; amended, Virginia Register Volume 22, Issue 26, eff. November 20, 2006.

12VAC30-110-100. Maintaining services.

A. If the agency sends the 10-day notice described in 12VAC30-110-80 and the appellant files his Request for Appeal before the date of action, his services shall not be terminated or reduced until the hearing officer issues a final decision unless it is determined at the hearing that the sole issue is one of federal or state law or policy and the appellant is promptly informed in writing that services are to be terminated or reduced pending the final decision.

B. If the agency's action is sustained on appeal, the agency may institute any available recovery procedures against the appellant to recoup the cost of any services furnished to the appellant, to the extent they were furnished solely by reason of subsection A of this section.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.10, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015.

Article 5
Miscellaneous Provisions

12VAC30-110-110. Appeals Division records.

Article 5
Miscellaneous Provisions

A. Removal of records. No person shall take from the division's custody any original record, paper, document, or exhibit that has been certified to the division except as the Director of the Appeals Division authorizes, or as may be necessary to furnish or transmit copies for other official purposes.

B. Confidentiality of records. Information in the appellant's record can be released only to a properly designated representative or other person or persons named in a release of information authorization signed by an appellant, his guardian, or power of attorney.

C. Fees. The fees to be charged and collected for any copies will be in accordance with Virginia's Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) or other controlling law.

D. Waiver of fees. When copies are requested from records in the division's custody, the required fee shall be waived if the copies are requested in connection with an individual's own review or appeal.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015.

12VAC30-110-120. Computation of time limits.

A. Acceptance of postmark date. Documents postmarked on or before a time limit's expiration shall be accepted as timely.

B. Computation of time limit. In computing any time period under these regulations, the day of the act or event from which the designated period of time begins to run shall be excluded and the last day included. If a time limit would expire on a Saturday, Sunday, or state or federal holiday, it shall be extended until the next regular business day.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 1.12, eff. October 1, 1993.

Article 1
Commencement of Appeals

12VAC30-110-130. Request for appeal.

Subpart II
Hearing Officer Review

Article 1
Commencement of Appeals

A. An appeal may be filed by any of the following methods:

1. By telephone;

2. Via email;

3. In person; and

4. Through other commonly available electronic means supported by the agency.

B. Any communication in the formats specified in subsection A of this section from an appellant or his representative that clearly expresses that he wants to present his case to a reviewing authority shall constitute an appeal request. This communication should explain the basis for the appeal.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 2.1, eff. October 1, 1993; amended, Virginia Register Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-140. Place of filing a Request for Appeal.

A Request for Appeal shall be sent to the Appeals Division.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015.

12VAC30-110-150. Filing date.

The date of filing shall be the date the request is postmarked, if mailed, or the date the request is received by the department, if delivered other than by mail.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.3, eff. October 1, 1993.

12VAC30-110-160. Time limit for filing.

A Request for Appeal shall be filed within 30 days of the appellant's receipt of the notice of an action or adverse determination described in 12VAC30-110-70. It is presumed that appellants will receive the notice five days after the agency mails the notice unless the appellant shows that he did not receive the notice within the five-day period. A Request for Appeal on the grounds that an agency has not acted with reasonable promptness may be filed at any time until the agency has acted.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015.

12VAC30-110-170. Extension of time for filing.

An extension of the 30-day period for filing a Request for Appeal may be granted for good cause shown. Examples of good cause include the following situations:

1. Appellant was seriously ill and was prevented from contacting the division;

2. Appellant did not receive notice of the agency's action or adverse determination;

3. Appellant sent the Request for Appeal to another government agency in good faith within the time limit;

4. Unusual or unavoidable circumstances prevented a timely filing.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 2.5, eff. October 1, 1993; amended, Virginia Register Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-180. Provision of information.

Upon receipt of a Request for Appeal, the division shall notify the appellant and his representative of general appeals procedures and shall provide further detailed information upon request.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.6, eff. October 1, 1993.

Article 2
Prehearing Review

12VAC30-110-190. Review.

Article 2
Prehearing Review

A hearing officer shall initially review an assigned case for compliance with prehearing requirements and may communicate with the appellant or his representative and the agency to confirm the agency action and schedule the hearing.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.7, eff. October 1, 1993.

12VAC30-110-200. Medical assessment.

A. A hearing officer may order an independent medical assessment when:

1. The hearing involves medical issues such as a diagnosis, an examining physician's report, or a medical review team's decision; and

2. The hearing officer determines it necessary to have an assessment by someone other than the person or team who made the original decision, for example, to obtain more detailed medical findings about the impairments, to obtain technical or specialized medical information, or to resolve conflicts or differences in medical findings or assessments in the existing evidence.

B. A medical assessment ordered pursuant to this regulation shall be at the department's expense and shall become part of the record.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.8, eff. October 1, 1993.

12VAC30-110-210. Prehearing action.

A. Invalidation. A Request for Appeal may be invalidated if it was not filed within the time limit imposed by 12VAC30-110-160 or extended pursuant to 12VAC30-110-170.

1. If the hearing officer determines that the appellant has failed to file a timely appeal, the hearing officer shall notify the appellant and the appellant's representative of the opportunity to show good cause for the late appeal.

2. If a factual dispute exists about the timeliness of the Request for Appeal, the hearing officer shall receive evidence or testimony on those matters before taking final action.

3. If the individual filing the appeal is not the appellant or an authorized representative of the appellant under the provisions of 12VAC30-110-60 A, the appeal shall be determined invalid.

4. If a Request for Appeal is invalidated, the hearing officer shall issue a decision pursuant to 12VAC30-110-370.

B. Administrative dismissal. Request for Appeal may be administratively dismissed without a hearing if the appellant has no right to appeal under 12VAC30-110-90.

1. If the hearing officer determines that the appellant does not have the right to an appeal, the hearing officer shall issue a final decision dismissing the appeal and notify the appellant and appellant's representative of the opportunity to seek judicial review.

2. If a Request for Appeal is administratively dismissed, the hearing officer shall issue a decision pursuant to 12VAC30-110-370.

C. Judgment on the record. If the hearing officer determines from the record that the agency's determination was clearly in error and that the case should be resolved in the appellant's favor, he shall issue a decision pursuant to 12VAC30-110-370.

D. Remand to agency. If the hearing officer determines from the record that the case might be resolved in the appellant's favor if the agency obtains and develops additional information, documentation, or verification, he may remand the case to the agency for action consistent with the hearing officer's written instructions. The remand order shall be sent to the appellant and any representative.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.9, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.

Article 3
Hearing

12VAC30-110-220. Evidentiary hearings.

Article 3
Hearing

A hearing officer shall review all agency determinations which are properly appealed; conduct informal, fact-gathering hearings; evaluate evidence presented; and issue a written final decision sustaining, reversing, or remanding each case to the agency for further proceedings.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.10, eff. October 1, 1993.

12VAC30-110-230. Scheduling and rescheduling.

A. To the extent possible, hearings will be scheduled at the appellant's convenience, with consideration of the travel distance required.

B. A hearing shall be rescheduled at the claimant's request no more than twice unless compelling reasons exist.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.11, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.

12VAC30-110-240. (Repealed.)

Historical Notes

Derived from VR460-04-8.7 § 2.11.1, eff. October 1, 1993; repealed, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.

12VAC30-110-250. Notification.

When a hearing is scheduled, the appellant and his representative shall be notified in writing of its time and place.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.12, eff. October 1, 1993.

12VAC30-110-260. Postponement.

A hearing may be postponed for good cause shown. No postponement will be granted beyond 30 days after the date of the Request for Appeal was filed unless the appellant or his representative waives in writing the 90-day deadline for the final decision.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.13, eff. October 1, 1993.

12VAC30-110-270. Location.

The hearing location shall be determined by the division. If for medical reasons the appellant is unable to travel, the hearing may be conducted at his residence.

The agency may respond to a series of individual requests for hearings by conducting a single group hearing:

1. Only in cases in which the sole issue involved is one of federal or state law or policy; and

2. Each person must be permitted to present his own case or be represented by his authorized representative.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.14, eff. October 1, 1993.

12VAC30-110-280. Client access to records.

Upon the request of the appellant or his representative, at a reasonable time before the date of the hearing, as well as during the hearing, the appellant and his representative may examine the content of appellant's case file and all documents and records the agency will rely on at the hearing.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.15, eff. October 1, 1993.

12VAC30-110-285. Appeals Division access to agency records.

A hearing officer shall have access to agency information necessary to issue a proper hearing decision that is sound and legally supportable, including information concerning state policies and regulations.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 31, Issue 16, eff. May 6, 2015.

12VAC30-110-290. Subpoenas.

Appellants who require the attendance of witnesses or the production of records, memoranda, papers, and other documents at the hearing may request issuance of a subpoena in writing. The request must be received by the division at least five business days before the hearing is scheduled. Such request must include the witness' name, home and work address, county or city of work and residence, and identify the sheriff's office which will serve the subpoena.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.16, eff. October 1, 1993.

12VAC30-110-300. Role of the hearing officer.

The hearing officer shall conduct the hearing, decide on questions of evidence, procedure and law, question witnesses, and assure that the hearing remains relevant to the issue or issues being appealed. The hearing officer shall control the conduct of the hearing and decide who may participate in or observe the hearing.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.17, eff. October 1, 1993; amended, Virginia Register Volume 10, Issue 23, eff. October 1, 1994.

12VAC30-110-310. Informality of hearings.

Hearings shall be conducted in an informal, nonadversarial manner. The appellant or his representative has the right to bring witnesses, establish all pertinent facts and circumstances; present an argument without undue interference, and question or refute the testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.18, eff. October 1, 1993.

12VAC30-110-320. Evidence.

The rules of evidence shall not strictly apply. All relevant, nonrepetitive evidence may be admitted, but the probative weight of the evidence will be evaluated by the hearing officer.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.19, eff. October 1, 1993.

12VAC30-110-330. Record of hearing.

All hearings shall be recorded either by court reporter, tape recorders, or whatever other means the agency deems appropriate. All exhibits accepted or rejected shall become part of the hearing record.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.20, eff. October 1, 1993.

12VAC30-110-340. Oath or affirmation.

All witnesses shall testify under oath which shall be administered by the court reporter or the hearing officer, as delegated by the department's director.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.21, eff. October 1, 1993.

12VAC30-110-350. Dismissal of Request for Appeal.

A. A Request for Appeal may be dismissed if:

1. The appellant or his representative withdraws the request via any of the methods in 12VAC30-110-130. For telephonic appeal withdrawals, the agency shall record the individual's statement and telephonic signature; or

2. The appellant or his representative fails to appear at the scheduled hearing without good cause and does not reply within 10 days after the hearing officer sends an inquiry as to whether the appellant wishes further action on the appeal.

B. Subsequent to the dismissal, the appellant shall receive the written order of dismissal via regular mail or electronic notification in accordance with the individual's election under 42 CFR 435.918(a).

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-360. Post-hearing supplementation of the record.

A. Medical assessment. Following a hearing, a hearing officer may order an independent medical assessment as described in 12VAC30-110-200.

B. Additional evidence. The hearing officer may leave the hearing record opened for a specified period of time in order to receive additional evidence or argument from the appellant. If the record indicates that evidence exists which was not presented by either party, with the appellant's permission, the hearing officer may attempt to secure such evidence.

C. Appellant's right to reconvene hearing or comment. If the hearing officer receives additional evidence from a person other than the appellant or his representative, the hearing officer shall send a copy of such evidence to the appellant and his representative and give the appellant the opportunity to comment on such evidence in writing or to reconvene the hearing to respond to such evidence.

D. Any additional evidence received will become a part of the hearing record, but the hearing officer must determine whether or not it will be used in making the decision.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.23, eff. October 1, 1993.

12VAC30-110-370. Final decision and transmission of the hearing record.

A. After conducting the hearing, reviewing the record, and deciding questions of law, the hearing officer shall issue a written final decision which either sustains or reverses the agency action or remands the case to the agency for further action consistent with his written instructions. The hearing officer's final decision shall be considered as the agency's final administrative action pursuant to 42 CFR, 431.244(f). The final decision shall include:

1. A description of the procedural development of the case;

2. Findings of fact that identify supporting evidence;

3. Conclusions of law that identify supporting regulations and law;

4. Conclusions and reasoning;

5. The specific action to be taken by the agency to implement the decision;

6. The deadline date by which further action must be taken; and

7. A cover letter stating that the hearing officer's decision is final, and stating that the final decision may be appealed directly to circuit court as provided in 12VAC30-110-40.

B. The hearing record shall be forwarded to the appellant and his representative with the final decision.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.7 § 2.24, eff. October 1, 1993; amended, Virginia Register Volume 10, Issue 23, eff. October 1, 1994; Volume 11, Issue 17, eff. June 15, 1995; Volume 22, Issue 26, eff. November 20, 2006; Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-380. (Repealed.)

Historical Notes

Derived from VR460-04-8.7 § 2.25, eff. October 1, 1993; repealed, Virginia Register Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-390. (Repealed.)

Historical Notes

Derived from VR460-04-8.7 §§ 3.1 through 3.22 eff. October 1, 1993; repealed, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.

Part II
Related Cash Assistance Property Rules

12VAC30-110-610. Definitions.

For those medically needy persons whose eligibility for medical assistance is required by federal law to be dependent on the budget methodology for Aid to Dependent Children, a home means the house and lot used as the principal residence and all contiguous property.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-2.6105 § 1, eff. June 16, 1993.

12VAC30-110-620. Availability of real or personal property.

Real or personal property of a spouse is considered available to a spouse if they are living together. Real or personal property of a parent living in the home is considered available to his child or children, except property owned by an SSI recipient is not considered available to his children in determining their eligibility for Medicaid.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-2.6105 § 2, eff. June 16, 1993.

12VAC30-110-630. Income-producing real property other than the home for aged, blind and disabled individuals.

A. Income-producing real property other than the home does not affect eligibility if:

1. It is used in a trade or business or is otherwise income producing;

2. The equity value (current market value less the.balance of any recorded liens against the property) of the property does not exceed $6,000; and

3. The property produces a net annual income to the individual of at least 6.0% of the property's equity value.

B. If the property produces less than the 6.0% net annual income, it may be excluded if its equity value does not exceed $6,000 and it is used in a business or nonbusiness income-producing activity, and the following conditions are met:

1. Unusual or adverse circumstances, such as a fire, street repair in front of a store, or natural disaster, cause a temporary reduction in the rate of return;

2. The property usually produces net annual income of at least 6.0% of the equity value; and

3. The individual expects the property to again produce income at the 6.0% rate of return within 18 months of the end of the calendar year in which the unusual incident caused the reduction in the rate of return. When the property must be counted because the equity exceeds $6,000 or because the net annual return to the individual is less than 6.0% or equity, the individual's equity over $6,000 in the property is a countable resource.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-2.6105 § 3, eff. June 16, 1993; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-640. Income.

For the purposes of determining eligibility, income is defined as the receipt of any property or services which an individual can apply, either directly or by sale or conversion, to meet the individual's basic needs for food, shelter, and clothing. Income is either earned (payment received by the individual for services performed as an employee, or as a result of being self-employed) or unearned (includes pensions, benefits, prizes, inheritances, gifts, dividends, support and maintenance).

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-2.6105 § 4, eff. June 16, 1993.

12VAC30-110-650. Deeming of income and resources; responsibility of spouses.

A. If an individual and the spouse apply or are eligible for Medicaid as aged, blind, or disabled, and they cease to live together (separate), their income and resources are considered available (deemed) to each other for the time periods specified in this section. After the appropriate time period, income or resources actually contributed by the separated spouse to the individual are counted in determining the individual's eligibility.

B. Reserved.

C. If spouses separate for any reason other than institutionalization, their income and resources are deemed to each other during the month in which they cease to live together. When spouses cease to live together, their income and resources cease to be deemed to each other beginning the first month following the month the couple ceases to live together.

D. If only one spouse in a couple applies for Medicaid or only one meets the aged, blind, or disabled requirement, or if both spouses apply and are not eligible as a couple and they separate, only the income and resources of the separated spouse that are actually contributed to the individual are counted as available to the individual beginning with the month after the month in which they cease to live together.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-2.6105 § 5, eff. June 16, 1993; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-660. Deeming of income and resources; responsibility of parents for blind or disabled children.

A. If the blind or disabled child is living in the same household with a parent and is (i) under age 18 or (ii) under age 21 and regularly attending a school, college, university or is receiving technical training designed to prepare him for gainful employment, the parents' income and resources are deemed available to the child.

B. Only the parent's income and resources which remain, after deducting appropriate disregards and amounts for the maintenance needs of the parents and other dependents in the household, are deemed as resources and unearned income available to the blind or disabled child.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-2.6105 § 6, eff. June 16, 1993; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-670. Aid to Dependent Children (ADC) Related Medically Needy Individuals.

A. Reserved.

B. Personal property.

1. Automobiles. The policy in § 4 of Supplement 8b (was Supplement 12) to Attachment 2.6-A of the State Plan (12VAC30-40-290) applies.

2. Life insurance. The policy in § 5 of Supplement 8b (was Supplement 12) to Attachment 2.6-A of the State Plan (12VAC30-40-290) applies.

3. Burial plots. The market value of burial plots owned by any member of the family unit are not counted toward the medical resource limit for the family.

4. Prepaid burial plans are counted as resources, except for the amounts of such funeral agreements that are disregarded under the Virginia ADC cash assistance program.

5. Assets which can be liquidated such as cash, bank accounts, stocks, bonds, and securities, are counted as resources.

C. The income eligibility determination methodology of the Virginia ADC cash assistance program applies.

Statutory Authority

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

Historical Notes

Derived from VR460-04-2.6105 § 7, eff. June 16, 1993; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-680. SSI.

A SSI recipient who has transferred or given away property to become or remain eligible for SSI or Medicaid and who has not received compensation in return for the property approximating the tax assessed value of the property is ineligible for long-term care (see 12VAC30-40-300).

Statutory Authority

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

Historical Notes

Derived from VR460-04-2.6105 § 8, eff. June 16, 1993; amended, Virginia Register Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-690. Imposition of lien.

No lien may be imposed or any encumbrance placed upon any property, real or personal, owned by a recipient of medical assistance except pursuant to a court judgment on account of benefits incorrectly paid.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-2.6105 § 9, eff. June 16, 1993.

Part III
Related More Liberal Methods of Treating Resources-Transfer of Assets

12VAC30-110-700. Transfer of assets.

A. Certain term life insurance policies purchased after April 7, 1993. When making eligibility determinations for institutional or community-based care to be paid for by the department, the department shall consider as an uncompensated transfer all resources that are used by an applicant to purchase any term life insurance policy that does not have a benefit payable at death that will equal or exceed twice the sum of all premiums paid for such policy if the policy was purchased within 30 months prior to the date of application for medical assistance unless the policy was purchased to fund a funeral in accordance with § 54.1-2820 of the Code of Virginia.

The purpose of the policy shall be determined by reviewing the policy. If the policy language specifies that the death benefits shall be used to purchase burial space items or funeral services then the purchase of such policy shall not be considered a transfer of assets; however, the Department of Medical Assistance Services shall initiate action to recover from the beneficiary the amount of any benefit paid under the provisions of the policy which exceed the actual expense of the funeral and burial of the insured.

B. Inter vivos trusts.

1. Assets of inter vivos trusts available. When determining eligibility for medical assistance, the assets of any inter vivos trust, both principal and interest, shall be considered available to the grantor who is an applicant for or recipient of medical assistance without regard to any provision of the trust which provides directly or indirectly for the suspension, termination, or diversion of the principal, income or other beneficial interest of the grantor if he should apply for medical assistance or if he should require medical, hospital or nursing care or long-term custodial, nursing or medical care. The amount of principal or interest to be considered available shall be that amount of income or principal of the trust to which the grantor is entitled if no application for assistance had been made except for trusts created prior to August 11, 1993.

2. Trusts created prior to August 11, 1993. Up to $25,000 of the corpus of an inter vivos trust created prior to August 11, 1993, shall not be a countable asset. If the grantor created more than one such trust, the corpora of the trusts shall be added together. If the sum of the corpora is less than $25,000, no assets from any of the trusts shall be considered available. If the sum of the corpora exceeds $25,000, then the total amount of the corpora less $25,000 is a countable asset. In determining the amount of each trust to exempt, the $25,000 exemption shall be prorated among the trusts.

In applying this section, if, prior to August 11, 1993, the grantor has made transfers for an uncompensated value as defined in § 20-88.02 of the Code of Virginia within 30 months of applying for Medicaid and no payments were ordered pursuant to subsection D of that section, then no $25,000 exemption shall be granted.

Statutory Authority

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

Historical Notes

Derived from VR460-04-2.6108 § 1, eff. July 1, 1993; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 25, Issue 14, eff. April 15, 2009.

Part IV
Transfer of Resources

12VAC30-110-710. Undue hardship; transfer of resources.

A. Undue hardship exists when the department determines that the application of the transfer of assets provisions would deprive the individual of medical care such that his health or his life would be endangered or would deprive the individual of food, clothing, shelter or other necessities of life.

B. When determining the eligibility of an individual who has transferred resources without receiving adequate compensation, the individual must be notified:

1. That an undue hardship can be claimed, the process for seeking an exception from the transfer of assets provisions and the time frame making determinations of whether an undue hardship exists;

a. That written documentation must be provided to substantiate the circumstances of the transfer and the claim of undue hardship.

b. That written documentation must be provided to document that the resources transferred without adequate compensation cannot be recovered.

c. That written documentation must clearly substantiate the immediate adverse impact of the denial of Medicaid coverage of long-term care services due to the uncompensated transfer and would result in the individual being removed from the institution or unable to receive life sustaining medical care, food, clothing, shelter or other necessities of life.

2. That a denial of a claim for undue hardship may be appealed in accordance with the provisions of 12VAC30-110.

C. A hardship waiver may be requested by:

1.The applicant for, or recipient of, medical assistance services;

2.The applicant or recipient's spouse, legal guardian, power-of-attorney or person who has been authorized in writing by the applicant or recipient to act on his behalf; or

3. With the written consent of the individual or his personal representative, the nursing facility in which the institutionalized individual is residing.

Statutory Authority

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

Historical Notes

Derived from VR460-04-2.6109 § 1, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; Volume 22, Issue 23, eff. August 23, 2006.

Part V
Married Institutionalized Individuals' Eligibility and Patient Pay
Subpart I
Definitions

12VAC30-110-720. Definitions.

Subpart I
Definitions

The following words and terms when used in this part shall have the following meanings unless the context clearly indicates otherwise:

"Acceptable medical evidence" means either (i) certification by a nursing home preadmission screening committee; or (ii) certification by the individual's attending physician.

"Actual monthly expenses" means the total of:

1. Rent or mortgage, including interest and principal;

2. Taxes and insurance;

3. Any maintenance charge for a condominium or cooperative; and

4. The utility standard deduction under the Food Stamp Program that would be appropriate to the number of persons living in the community spouse's household, if utilities are not included in the rent or maintenance charge.

"Applicable percent" means that percentage as defined in § 1924(d)(3)(B) of the Social Security Act.

"As soon as practicable" (as it relates to transfer of resources from the institutionalized spouse to the community spouse for the purpose of the community spouse resource allowance) means within 90 days from the date the local agency takes action to approve the institutionalized spouse's initial eligibility for medical assistance long-term care services when the institutionalized spouse agrees to transfer resources to the community spouse.

"At the beginning of the first continuous period of institutionalization" means the first calendar month of a continuous period of institutionalization in a medical institution or of receipt of a Medicaid community-based care waiver service or hospice.

"Community spouse" means a person who is married to an institutionalized spouse and is not himself an inpatient at a medical institution or nursing facility.

"Community spouse monthly income allowance" means an amount by which the minimum monthly maintenance needs allowance exceeds the amount of monthly income otherwise available to the community spouse.

"Community spouse resource allowance" means the amount of the resources in the institutionalized spouse's name that can be transferred to the community spouse to bring the resources in the community spouse's name up to the protected resource amount.

"Continuous period of institutionalization" means 30 consecutive days of institutional care in a medical institution or nursing facility, or 30 consecutive days of receipt of Medicaid waiver or hospice services, or 30 consecutive days of a combination of institutional care and waiver and hospice services. Continuity is broken only by 30 or more days absence from a medical institution or 30 or more days of nonreceipt of waiver services.

"Couple's countable resources" means all of the couple's nonexcluded resources regardless of state laws relating to community property or division of marital property. For purposes of determining the combined and separate resources of the institutionalized and community spouses when determining the institutionalized spouse's eligibility, the couple's home, contiguous property, household goods and one automobile are excluded.

"Department" means the Department of Medical Assistance Services.

"Dependent child" means a child under age 21 and a child age 21 years old or older, of either spouse, who lives with the community spouse and who may be claimed as a dependent by either member of the couple for tax purposes pursuant to the Internal Revenue Code.

"Dependent family member" means a parent, minor child, dependent child, or dependent sibling, including half brothers and half sisters and siblings gained through adoption, of either member of a couple who resides with the community spouse and who may be claimed as a dependent by either member of the couple for tax purposes pursuant to the Internal Revenue Code.

"Exceptional circumstances resulting in significant financial duress" means circumstances other than those taken into account in establishing the spousal maintenance allowance for which the community spouse incurs expenses in amounts that he cannot be expected to pay from the spousal maintenance allowance or from amounts held in the community spouse resource allowance.

"Excess shelter allowance" means the amount by which the actual monthly expense of maintaining the community spouse's residence plus the standard utility allowance exceeds the excess shelter standard.

"Excess shelter standard" means 30% of the monthly maintenance needs standard.

"Family member's income allowance" means an allowance for each dependent family member residing with the community spouse. The family member's income allowance is equal to 1/3 of the amount by which the monthly maintenance needs standard exceeds the family member's income.

"Federal Poverty Level" or "FPL" means the annual Federal Poverty Level as computed by the Office of Management and Budget and published in the Federal Register.

"First continuous period of institutionalization" means the first day of the first month of the first continuous period of institutionalization, which began on or after September 30, 1989.

"Initial eligibility determination" means:

1. An eligibility determination made in conjunction with a medical assistance application filed during an individual's most recent continuous period of institutionalization; or

2. The initial redetermination of eligibility for a medical assistance eligible institutionalized spouse after being admitted to an institution or receiving medical assistance community-based care waiver services.

"Initial redetermination" means the first redetermination of eligibility for a medical assistance eligible spouse which is regularly scheduled, or which is made necessary by a change in the individual's circumstances.

"Institutionalized spouse" means an individual who is an inpatient at a medical institution, who is receiving medical assistance community-based care waiver services, or who has elected hospice services, and who is likely to remain in such facility or to receive waiver or hospice services for at least 30 consecutive days, and who has a spouse who is not in a medical institution or nursing facility.

"Likely to remain in an institution" means a reasonable expectation based on acceptable medical evidence that an individual will be in a medical institution or will receive medical assistance waiver or hospice services for 30 consecutive days, even if receipt of institutional care or waiver or hospice services actually terminates in less than 30 days. Individuals who have been screened and approved for medical assistance community-based waiver services or who have elected hospice services shall be considered likely to remain in an institution.

"Maximum monthly maintenance needs standard" is the upper limit, i.e., cap established under § 1924(d)(3)(C) of the Social Security Act.

"Maximum spousal resource standard" means the maximum amount of the couple's combined countable resources established for a community spouse to maintain himself in the community calculated in accordance with § 1924(f)(2)(A)(ii)(II) of the Social Security Act. This amount increases annually by the same percentage as the percentage increase in the Consumer Price Index for all urban consumers between September 1988 and the September before the calendar year involved as required in § 1924(g) of the Social Security Act.

"Medical institution" or "nursing facility" means hospitals and nursing facilities, including an intermediate care facility for the mentally retarded (ICF/MR), consistent with the definitions of such institutions found in the Code of Federal Regulations at 42 CFR 435.1009, 42 CFR 435.1010, 42 CFR 440.40 and 42 CFR 440.150 and which are authorized under Virginia law to provide medical care.

"Minimum monthly maintenance needs allowance" means the monthly maintenance needs standard, plus an excess shelter allowance, if applicable, not to exceed the maximum monthly maintenance needs standard. The minimum monthly maintenance needs allowance is the amount to which a community spouse's income is compared in order to determine the community spouse's monthly income allowance.

"Minor" means a child under age 21, of either spouse, who lives with the community spouse.

"Monthly maintenance needs standard" means an amount no less than 150% of 1/12 of the Federal Poverty Level for a family of two in effect on July 1 of each year.

"Other family members" means dependent children and dependent parents and siblings of either member of a couple who reside with the community spouse.

"Otherwise available income or resources" means income and resources which are legally available to the community spouse and to which the community spouse has access and control.

"Promptly assess resources" means within 45 days of the request for resource assessment unless the delay is due to nonreceipt of documentation or verification, if required, from the applicant or from a third party.

"Protected period" means a period of time, not to exceed 90 days after an initial determination of medical assistance eligibility. During the protected period, the amount of the community spouse resource allowance will be excluded from the institutionalized spouse's countable resources if the institutionalized spouse expressly indicates his intention to transfer resources to the community spouse.

"Resource assessment" means a computation, completed by request or upon medical assistance application, of a couple's combined countable resources at the beginning of the first continuous period of institutionalization of the institutionalized spouse beginning on or after September 30, 1989.

"Resources" means real and personal property owned by a medical assistance applicant or his spouse. Resources do not include resources excluded under subsection (a) or (d) of § 1613 of the Social Security Act and resources that would be excluded under § 1613(a)(2)(A) but for the limitation on total value described in such section.

"Significant financial duress" means, but is not limited to, threatened loss of basic shelter, food or medically necessary health care or the financial burden of caring for a disabled child, sibling or other immediate relative.

"Spousal protected resource amount" means (at the time of medical assistance application as an institutionalized spouse) the greater of: (i) the spousal resource standard in effect at the time of application; (ii) the spousal share, not to exceed the maximum spousal resource standard in effect at the time of application; (iii) the amount actually transferred to the community spouse by the institutionalized spouse pursuant to a court spousal support order; or (iv) the amount of resources designated by a department hearing officer.

"Spousal resource standard" means the minimum amount of a couple's combined countable resources calculated in accordance with § 1924(f)(2)(A)(i) of the Social Security Act necessary for the community spouse to maintain himself in the community. The amount increases each calendar year after 1989 by the same percentage increase as in the Consumer Price Index as required by § 1924(g) of the Social Security Act.

"Spousal share" means 1/2 of the couple's total countable resources at the beginning of the first continuous period of institutionalization as determined by a resource assessment.

"Spouse" means a person who is legally married to another person under Virginia law.

"State Plan" means the State Plan for Medical Assistance.

"Undue hardship" means that the provisions listed under 12VAC30-110-831 have been met. The absence of an undue hardship provision would result in the institutionalized spouse being ineligible for Medicaid payment of long-term care services and unable to purchase life-sustaining medical care.

"Waiver services" means medical assistance reimbursed home or community-based services covered under a § 1915(c) waiver approved by the Secretary of the United States Department of Health and Human Services.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.6 § 1.1, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001; Volume 18, Issue 21, eff. August 1, 2002; Volume 25, Issue 14, eff. April 15, 2009.

Article 1
General

12VAC30-110-730. Applicability.

Subpart II
Resource Assessments And Eligibility

Article 1
General

A. These income and resource regulations shall apply to a married institutionalized individual who:

1. Was admitted to a medical institution, medical assistance community-based waiver service or hospice service on or after September 30, 1989, and has been continuously institutionalized since admission; and

2. Has a community spouse.

B. In determining the income and resources of an institutionalized spouse as defined in 12VAC30-110-720, the provisions of 12VAC30-110-720 through 12VAC30-110-1010 supercede any other provision of medical assistance regulations that is inconsistent with them.

C. Except as this section specifically provides, this section does not apply to:

1. The determination of what constitutes income or resources; or

2. The methodology and standards for determining and evaluating income and resources.

D. These rules shall cease to apply to determinations of medical assistance eligibility or to post-eligibility determinations of patient pay in the first calendar month following changes in circumstances resulting in an institutionalized spouse no longer being institutionalized or no longer having a community spouse.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.1, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-740. (Repealed.)

Historical Notes

Derived from VR460-04-8.6 § 2.2, eff. October 1, 1991; repealed, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

Article 2
Assessments of Couple's Resources

12VAC30-110-741. Resource assessment required.

Article 2
Assessments of Couple's Resources

A resource assessment shall be completed by the entity determining medical assistance eligibility on all medical assistance applications for married institutionalized individuals who have a community spouse. If an applicant alleges that his marital status is unknown, it shall be his responsibility to establish his marital status. It shall be the applicant's responsibility to locate his community spouse. If attempts to establish marital status or locate the separated spouse are unsuccessful or the community spouse does not provide the required information necessary to complete the resource assessment, the medical assistance eligibility application will be denied due to inability to complete the required resource assessment, unless undue hardship, as defined in 12VAC30-110-831, is met.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001; amended, Virginia Register Volume 18, Issue 21, eff. August 1, 2002; Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-744. Resource assessment initiated.

A resource assessment shall be initiated by an entity determining medical assistance eligibility:

1. Upon request by either spouse of a couple, or a representative acting on behalf of either spouse, at the beginning of the first continuous period of institutionalization when (i) all relevant documentation of resources has been received and (ii) upon payment of a fee, if any, the amount of which is determined by the entity determining medical assistance eligibility, if the institutionalized spouse has not applied for medical assistance; or

2. Upon application for medical assistance by or on behalf of a married institutionalized individual who has a community spouse.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-747. Total resources.

There shall be computed as of the beginning of the first continuous period of institutionalization of the institutional spouse, the total value of the couple's resources to the extent either the institutionalized spouse or the community spouse has an ownership interest.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-750. Notification of documentation required.

When a resource assessment is initiated, the Department of Social Services shall notify the applicant of all relevant documentation required to be submitted for the assessment.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.3, eff. October 1, 1991.

12VAC30-110-751. Spousal share.

The total value of the couple's combined resources shall be divided by two to determine the spousal share.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-760. Failure to provide documentation.

If an applicant fails to provide requested documentation necessary to complete the required resource assessment within 45 days of receipt of notification sent pursuant to 12VAC30-110-750, the department shall notify him that the assessment cannot be completed.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.4, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-770. Notification of assessment and appeal rights.

The department shall provide each member of a couple with copies of the completed resource assessment and the documentation used to produce it. The department shall notify the couple of the procedure by which to appeal the resource assessment.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.5, eff. October 1, 1991.

12VAC30-110-780. Appeal of resource assessment.

A. Not accompanied by a medical assistance application. If the resource assessment was conducted without a concurrent medical assistance application, an ineligible spouse may not appeal the assessment pursuant to the existing Client Appeals regulations (Part I (12VAC30-110-10 et seq.) of this chapter); however, an ineligible spouse will have an opportunity to appeal assessment findings if and when his institutionalized spouse applies for medical assistance.

B. Medical assistance application. A resource assessment which was conducted pursuant to a medical assistance application submitted by the institutionalized spouse may be appealed by either spouse pursuant to existing Client Appeals regulations (Part I (12VAC30-110-10 et seq.) of this chapter).

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.6, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

Article 3
Resource Eligibility Determinations for Institutionalized Spouses

12VAC30-110-790. Applicability.

Article 3
Resource Eligibility Determinations for Institutionalized Spouses

This article shall be used to determine a married institutionalized individual's initial and continuing medical assistance eligibility for his current continuous period of institutionalization.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.7, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-800. Initial eligibility determinations.

An institutionalized spouse meets the medical assistance resource eligibility requirements if the difference between the couple's total countable resources at the time of application and the spousal protected resource amount, as defined in 12VAC30-110-720, is equal to or less than the appropriate medical assistance resource limit for one person.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.8, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-810. Initial determinations of ineligibility.

When the institutionalized spouse has countable resources in excess of the medical assistance resource limit for one person, the application for medical assistance shall be denied.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.9, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-813. Attribution of resources at the time of initial eligibility determination.

In determining the countable resources of an institutionalized spouse at the time of application, regardless of any state laws relating to community property or division of marital property, all resources held by either the institutionalized spouse, community spouse, or both, shall be considered available to the institutionalized spouse but only to the extent that the amount of such resources exceeds the spousal protected resource amount calculated in accordance with § 1924(f)(2)(A) of the Act.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-815. Spousal protected resource amounts.

In the initial determination of eligibility, there shall be deducted from the couple's total combined countable resources in the application month a spousal protected resource amount.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-820. (Repealed.)

Historical Notes

Derived from VR460-04-8.6 § 2.10, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; repealed, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-830. Additional resource exclusions.

If an institutionalized spouse has resources exceeding the appropriate medical assistance resource limit for one person, the following are deducted from his resources for the purpose of establishing eligibility, as appropriate:

1. The amount of resources which the institutionalized spouse has transferred to the community spouse or to other dependents pursuant to a court support order;

2. An amount necessary to make the individual eligible if the department determines that the denial of medical assistance would create undue hardship as defined in 12VAC30-110-720.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.11, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-831. Undue hardship.

A. Undue hardship can be claimed when the value of resources owned on the first day of the first month of the first continuous period of institutionalization cannot be verified after both spouses have exhausted all avenues to document the value of the resources owned on that day. When hardship is claimed, the spousal resource standard shall be used as a substitute for the spousal share when calculating the spousal protected resource amount.

B. Undue hardship can also be claimed if each of the following criteria are met:

1. The applicant establishes by affidavit specific facts sufficient to demonstrate:

a. That he has taken all steps reasonable under the circumstances to locate the spouse, to obtain relevant information about the resources of the spouse, and to obtain financial support from the spouse; and

b. That he has been unsuccessful in doing so.

Absent extraordinary circumstances, determined by DMAS, the requirements of subdivision 1 a of this subsection cannot be met unless the applicant and spouse have lived separate and apart without cohabitation and without interruption for at least 36 months.

2. Upon such investigation as DMAS may undertake, no facts are revealed that refute the statements contained in the applicant's affidavit, as required by subdivision 1 of this subsection;

3. The applicant has assigned to DMAS, to the full extent allowed by law, all claims he may have to financial support from the spouse; and

4. The applicant cooperates with DMAS in any effort undertaken or requested by DMAS to locate the spouse, to obtain information about the spouse's resources or to obtain financial support from the spouse.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 21, eff. August 1, 2002.

12VAC30-110-840. Separate treatment of resources after eligibility for benefits established.

Beginning with the first calendar month following the date of the initial determination of eligibility, unless 12VAC30-110-900 applies, the institutional spouse's continuing eligibility shall be determined based solely on resources held in his name. The resources owned by the community spouse shall not be deemed available to the institutional spouse in the month following the initial month of ongoing eligibility.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.12, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-850. Post-eligibility resource transfers.

After an initial determination of eligibility and during the protected period specified in 12VAC30-110-860, an institutionalized spouse may transfer to his community spouse resources equal to the community spouse resource allowance which are not already titled to the community spouse. Any resource owned by the institutionalized spouse which is not transferred pursuant to this section and which the institutionalized spouse does not actually make available to meet the community spouse's needs shall be deemed available to the institutional spouse for the purpose of determining continuing eligibility.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.13, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-853. Community spouse resource allowance.

The community spouse resource allowance shall be calculated by determining the amount by which the greatest of:

1. The spousal resource standard;

2. The spousal share not to exceed the maximum spousal resource standard;

3. An amount established by a department hearing officer; or

4. An amount actually transferred from the institutionalized spouse to the community spouse under a court spousal support order exceeds the amount of resources otherwise available to the community spouse (determined without regard to such an allowance). If the community spouse has title to resources equal to or exceeding his spousal protected resource amount, he shall not be entitled to a community spouse resource allowance.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-856. Revisions to the community spouse resource allowance.

For the purposes of this article, a community spouse resource allowance may be revised if:

1. A department hearing officer determines on appeal that the income generated from the community spouse resource allowance as originally calculated pursuant to 12VAC30-110-853 is inadequate to raise the community spouse's income to the minimum amount to be deducted as a maintenance allowance in the post-eligibility determination made pursuant to Article 4 (12VAC30-110-920 et seq.) of this subpart;

2. A department hearing officer determines on appeal that the original calculation was incorrect;

3. The department determines that the original information with which the spousal share was calculated was incorrect; or

4. An institutionalized spouse transfers resources to a community spouse pursuant to a court order for spousal support.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-860. Protected periods of eligibility.

Subject to 12VAC30-110-870, for 90 days after an initial determination of eligibility, resources in the institutionalized spouse's name necessary to meet the community spouse resource allowance shall be disregarded in determining continued eligibility of the institutionalized spouse. An institutionalized spouse's eligibility shall be protected to allow him time to legally transfer resources pursuant to 12VAC30-110-850 if the institutionalized spouse expressly indicates in writing his intention to effect such a transfer. Absent such an expression of intent, the protected period will not extend beyond the end of the month in which eligibility is being determined. The 90-day protected period shall begin with the date the agency takes action to approve the institutionalized spouse's initial eligibility for medical assistance for institutional, waiver, or hospice services. No extension of the protected period shall be permitted.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.14, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-870. Exception to protected period of eligibility.

If, at the time of an initial determination of eligibility, a community spouse has title to resources equal to or exceeding his spousal protected resource amount, no protected period of eligibility shall exist.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.15, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-880. Additional resources acquired during protected period of eligibility.

If an institutionalized spouse obtains additional resources during a protected period of eligibility, the additional resources shall be exempt during the protected period if:

1. The new resources combined with other resources that the institutionalized spouse intends to retain do not exceed the appropriate medical assistance resource limit for one person, or

2. The institutionalized spouse intends to transfer the new resources to the community spouse during the protected period of eligibility, and the total resources to be transferred do not exceed the community spouse resource allowance.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.16, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-890. (Repealed.)

Historical Notes

Derived from VR460-04-8.6 § 2.17, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; repealed, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-900. Resource eligibility determinations in retroactive months.

A. First application for medical assistance. In each of the three months preceding an institutionalized spouse's first application for medical assistance in the current continuous period of institutionalization for which resource eligibility is to be determined, the community spouse protected resource amount shall be deducted from the couple's combined countable resources held on the first moment of the first day of each retroactive month.

B. Later applications for medical assistance when medical assistance eligibility was established previously. If an individual established medical assistance eligibility as an institutionalized spouse during a period of institutionalization that began on or after September 30, 1989, regardless of whether the period of institutionalization is the same continuous period covered by the previous application, resources owned by the community spouse are not considered in determining the institutionalized spouse's medical assistance eligibility.

C. Later applications for medical assistance when Virginia medical assistance eligibility was not previously established. Regardless of whether previous medical assistance applications have been submitted, if an individual has never established medical assistance eligibility as an institutionalized spouse, the application shall be treated in the same manner as the first application.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.18, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-910. Eligibility for community spouses and other family members.

If a community spouse or other family member applies for medical assistance eligibility on his own behalf, these eligibility regulations will not be used to determine his eligibility for medical assistance.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 2.19, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

Article 4
Income

12VAC30-110-920. Applicability.

Article 4
Income

This article shall apply only to the institutional spouse's eligibility for medical assistance.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 3.1, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-921. Treatment of income.

During any month in which an institutionalized spouse is an inpatient in a medical institution, is receiving medical assistance community-based waiver services or has elected hospice services, no income of the community spouse shall be deemed available to the institutionalized spouse except as provided in 12VAC30-110-930.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-930. Determining income.

A couple's income shall be determined as follows, without regard to state laws governing community property or division of marital property:

1. Income from nontrust property. Unless a department hearing officer determines that the institutionalized spouse has proven to the contrary by a preponderance of the evidence:

a. Income paid to one spouse belongs to that spouse;

b. Each spouse owns one-half of all income paid to both spouses jointly;

c. Each spouse owns one-half of any income which has no instrument establishing ownership;

d. Income paid in the name of either spouse, or both spouses and at least one other party, shall be considered available to each spouse in a proportionate share. When income is paid to both spouses and each spouse's individual interest is not specified, one-half of their joint interest in the income shall be considered as available to each spouse.

2. Income from trust property. Ownership of trust property shall be determined pursuant to the State Plan, except as follows:

a. Each member of a couple owns the income from trust property in accordance with the trust's specific terms.

b. If a trust instrument is not specific as to the ownership interest in income, ownership shall be determined as follows:

(1) Income paid to one spouse belongs to that spouse;

(2) One-half income paid to both spouses shall be considered available to each spouse;

(3) Income from a trust paid in the name of either spouse, or both spouses and at least one other party, shall be considered available to each spouse in a proportionate share. When income from a trust is paid to both spouses and each spouse's individual interest is not specified, consider one-half of their joint interest in the income as available to each spouse.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 3.2, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-940. Applicability.

Subpart III
Post-Eligibility Process

After an institutionalized spouse is determined or redetermined to be eligible for medical assistance, and after all appropriate deductions pursuant to 12VAC30-110-950 through 12VAC30-110-970 have been made from an institutionalized spouse's gross monthly income pursuant to this subpart, the balance shall constitute the maximum amount the institutionalized spouse shall pay for medical assistance-covered institutional or waiver services.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 3.3, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-950. Mandatory deductions from institutionalized spouse's income.

The following amounts shall be deducted from the institutionalized spouse's gross monthly income:

1. A personal needs allowance of $40;

2. The community spouse monthly income allowance as calculated pursuant to 12VAC30-110-960;

3. The family maintenance allowance, if any, as calculated pursuant to 12VAC30-110-970; and

4. Incurred medical and remedial care expenses recognized under state law, not covered under the State Plan and not subject to third party payment.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.6 § 3.4, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001; Volume 23, Issue 18, eff. July 1, 2007.

12VAC30-110-960. Community spouse income allowance.

A. Unless the exceptions in subsections B and C of this section apply, a community spouse monthly income allowance shall be deducted from the monthly income of the institutionalized spouse. The community spouse monthly income allowance shall be the amount by which the greater of:

1. The community spouse monthly maintenance needs standard plus the excess shelter allowance, if any; or

2. An amount determined necessary by a department hearing officer because of exceptional circumstances resulting in extreme financial duress;

exceeds the amount of monthly income otherwise available to the community spouse (determined without regard to such an allowance).

B. A community spouse monthly income allowance shall not be deducted from the income of the institutionalized spouse when the institutionalized spouse does not actually make an income allowance available to the community spouse.

C. If a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall be not less than the amount of the monthly income so ordered.

D. Application of "Income First" Rule to Revision of Community Spouse Resource Allowance. All income of the institutionalized spouse that could be made available to a community spouse, in accordance with the calculation of the community spouse monthly income allowance, must be made available before an amount of resources adequate to provide the difference between the minimum monthly maintenance needs allowance and all income available to the community spouse is allocated to the community spouse.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.6 § 3.5, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001; Volume 22, Issue 23, eff. August 23, 2006.

12VAC30-110-970. Family members maintenance needs allowance.

A. There shall be deducted from the institutionalized spouse's income an allowance for each dependent family member.

B. The amount deducted shall be an amount equal to 1/3 of the community spouse monthly maintenance needs standard, minus each family member's income.

C. This allowance is to be deducted regardless of whether the institutionalized spouse actually makes the allowance available to the family member.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 3.6, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-980. Applicability, notices and regulatory authority.

Subpart IV
Appeals

A. The appeals process contained in this subpart shall apply to appeals of resource assessments, initial determinations and redeterminations of resources, and income amounts and allowances made in connection with applications for medical assistance benefits by spouses institutionalized for a continuous period on or after September 30, 1989, or receiving waiver or hospice services for a continuous period on or after September 30, 1989, pursuant to existing Client Appeals regulations (Part I (12VAC30-110-10 et seq.) of this chapter).

B. Written notices are to be provided to the institutionalized spouse and the community spouse advising them of:

1. Resource assessments;

2. The amounts deducted for spousal and family allowances used in the post-eligibility calculation; and

3. Their rights to appeal the amounts deducted in the calculations for determining the spousal and family allowances used in the post-eligibility calculation.

C. Hearings and appeals held pursuant to this subpart are consistent with regulations at 42 CFR Part 431, Subpart E.

Statutory Authority

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

Historical Notes

Derived from VR460-04-8.6 § 4.1, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001; Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-990. (Repealed.)

Historical Notes

Derived from VR460-04-8.6 § 4.2, eff. October 1, 1991; amended, Virginia Register Volume 17, Issue 13, eff. April 11, 2001; repealed, Virginia Register Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-1000. (Repealed.)

Historical Notes

Derived from VR460-04-8.6 § 4.3, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; repealed, Virginia Register Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-1010. Hearing officer authority.

Through the appeals process applicable as described in 12VAC30-110-980, hearing officers shall prescribe appropriate increases in income or resource allowances in the event they determine that exceptional circumstances exist which cause significant financial duress to the community spouse.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.6 § 4.4, eff. October 1, 1991; amended, Virginia Register Volume 12, Issue 9, eff. March 1, 1996; Volume 17, Issue 13, eff. April 11, 2001.

12VAC30-110-1011. Appealable issues.

Only the following issues shall be appealable under this section:

1. Spousal share determinations;

2. Initial resource eligibility determinations and redeterminations;

3. Spousal protected resource amounts;

4. Community spouse resource allowance;

5. Income eligibility determinations and redeterminations; and

6. Patient pay and income allowance calculations.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 17, Issue 13, eff. April 11, 2001.

Part VI
Deduction of Incurred Medical Expenses in Determining Countable Income (Spenddown)

12VAC30-110-1020. Definitions.

"AFDC" means Aid to Families with Dependent Children.

"Applicable disregards" means the amounts that would be deducted in determining eligibility under AFDC for families and under SSI for aged, blind and disabled recipients.

"Available income" means the earned and unearned income used in determining the financial eligibility of a medically needy individual.

"Budget period" means a prospective period of time during which an individual's income is calculated to determine eligibility.

"Budget unit" means a subunit of the family unit which is used in calculating countable income and resources when deeming of income and resources between family members would violate the Social Security Act.

"Countable income" means, for the medically needy, the amount of an applicant's income measured against the medically needy income level (MNIL). Countable income is determined by deducting the following amounts from reported gross income:

1. For individuals under age 21 and caretaker relative, amounts that would be deducted in determining eligibility under the state's AFDC plan, except for those prohibited under Title XIX of the Social Security Act.

2. For aged, blind, or disabled individuals, amounts that would be deducted determining eligibility under SSI and (i) any SSI benefits, (ii) any auxiliary grant, and (iii) other deductions from income applied under the Medicaid plan. This figure is measured against the income level for Medicaid eligibility.

"Expenses covered in the plan" means expenses for services included in the State Plan for Medical Assistance including those that exceed agency limitations of amount, duration or scope of services.

"Expenses not covered in the plan" means expenses for necessary medical and remedial services recognized under State law but not covered under the State Plan for Medical Assistance.

"Excess countable income" means the amount of income to be applied toward incurred medical expenses and is determined by subtracting the MNIL from the countable income.

"Family unit" consists of all individuals listed on the application form as living in the household and among whom legal responsibility under state law exists.

"Financially responsible relative" means a spouse or parent whose income is actually used in determining eligibility.

"Incurred expenses" means medical or remedial services:

1. Which are recognized under state law;

2. Which are rendered to an individual, family, or financially responsible relative;

3. For which the individual is liable in the current accounting period or was liable in the three-month retroactive period; and

4. Which are not subject to payment by any liable third party.

An expense for medical or remedial service is an incurred expense from the beginning of the accounting period in which the liability arises until the end of the accounting period in which the liability is satisfied.

"Institutionalized individual" means an individual residing in a long-term care institution or covered under a home and community-based waiver for 30 consecutive days.

"Liable third party" means any individual, entity or program that is or may be liable to pay all or part of the cost of medical or remedial treatment for injury, disease, or disability of an applicant or recipient of Medicaid.

"Medically needy income level" or "MNIL" means the income standard established to determine the eligibility of medically needy individuals and families.

"Old bills" means medical or remedial care expenses incurred prior to the initial application month and application's retroactive period, and which were not deducted from (counted in) any previous spenddown that was met.

"Projected expenses" means expenses for services that have not yet been incurred but are reasonably expected to be.

"Service dates" means dates of incurred medical expenses.

"Spenddown" means the process through which countable income is compared to the MNIL for the budget period and incurred medical and remedial care expenses are deducted from income in excess of the MNIL.

"Spenddown liability" means amounts by which countable income exceeds MNIL for the budget period.

"SSI" means Supplemental Security Income.

"State or territorial public program" means a program that is operated (i.e. administratively controlled) by a state or territory (including a political subdivision thereof).

"State or territorially-financed program" means a state or territorial public program whose funding, except for deductibles and coinsurance amounts required from program beneficiaries, is either:

1. Appropriated by the state or territory directly to the administering agency, or

2. Transferred from another state or territorial public agency to the administering agency.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 1, eff. April 30, 1995.

12VAC30-110-1030. Income eligibility.

A. Individuals and families who otherwise meet the medically needy eligibility requirements, but who have income in excess of the medically needy limit, shall be ineligible for medical assistance unless the excess income is insufficient to meet the total cost of needed medical care and the cost of incurred medical or remedial care recognized under state law has been deducted from excess income.

B. Spenddown applies only to the medically needy. Individuals must meet the medically needy nonfinancial, property transfer and resource requirements in order to be placed on a spenddown.

C. An individual or family shall be determined to be income eligible when countable income is equal to or lower than the medically needy income level for the budget period or when countable income after deduction of specified medical and remedial care expenses is equal to or below the MNIL. Countable income shall be compared to the MNIL for the budget period and incurred medical and remedial care expenses shall be deducted from income in excess of the MNIL.

D. An applicant having income in excess of the MNIL shall be advised that medical expenses incurred prior to the month of application count toward meeting the spenddown if the following conditions are met:

1. The applicant is legally liable to pay the expense.

2. A claim for the expense was submitted to the liable third parties and the applicant provides evidence of the third parties' denial of payment or amount of payment made by the third parties for the expense. Only that portion of the expense which is the applicant's legal responsibility (not the liability of any third party) shall be deducted from countable income.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 2, eff. April 30, 1995.

12VAC30-110-1040. Spenddown calculation.

A. When countable income exceeds the Medically Needy Income Level (MNIL) for the budget period, certain medical and remedial care expenses incurred by an individual, family or financially responsible relative that are not subject to payment by a third party unless the third party is a public program of a state or territory or political subdivision of a state or territory shall be deducted from countable income.

B. Medical and remedial care expenses paid by a public program (other than a Medicaid program) of a state or territory shall be deducted from countable income. Once countable income is reduced (by applying these deductions) to an amount equal to the MNIL, the individual or family shall be income eligible.

C. Reasonable measures to determine the legal liability of third parties to pay for incurred expenses shall be taken. However, eligibility determination shall not be forestalled simply because third party liability cannot be ascertained or payment by the third party has not been received.

D. The time standards for reaching decisions on Medicaid eligibility must be met when determining eligibility through spenddown: 90 days for applicants who apply on the basis of disability and 45 days for all other applicants. These limits shall apply for receipt of third party payment or verification of third party intent to pay in order to determine deductible expenses under spenddown. Efforts to determine the liability of a third party shall continue through the last day of this period. If information regarding third party liability is not received by this date, eligibility must be established based upon the information available.

E. If the amount subject to payment by a third party cannot be determined based on information available, the bill in question to which the third party liability applies cannot be used in determining the spenddown. However, if information becomes available at a later date, the spenddown shall be recalculated and the effective date of eligibility revised.

Statutory Authority

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

Historical Notes

Derived from VR460-10-8.2600 § 3, eff. April 30, 1995; amended, Virginia Register Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-1050. Required deductions based on kinds of services.

In determining incurred medical expenses to be deducted from income, the medical or remedial care expenses listed below that are not subject to payment by a third party shall be deducted from countable income. Such deductions are allowable even if the expenses are paid by a public program (other than the Medicaid program) of a state or territory if the program is financed by the state or territory.

1. Expenses for Medicare and other health insurance premiums, and deductible or coinsurance charges, including enrollment fees, copayments, or deductibles imposed by the State Plan for Medical Assistance.

2. Expenses incurred by the individual or family or financially responsible relative for necessary medical and remedial services that are recognized under state law but are not included in the State Plan for Medical Assistance.

3. Expenses incurred by the individual or family or by financially responsible relative for necessary medical and remedial services included in the State Plan for Medical Assistance including those that exceed agency limitations on amount, duration and scope of services.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 4, eff. April 30, 1995.

12VAC30-110-1060. Required deductions based on the age of bills.

In determining incurred medical expenses to be deducted from income, the agency must include the following:

1. For the retroactive budget period for medical assistance (the three months prior to the month of application), on expenses incurred during such period, whether paid or unpaid and "old bills" (unpaid expenses which remain a liability to the individual incurred prior to the period), to the extent that the expenses have not been deducted previously in establishing eligibility;

2. For the first prospective budget period, expenses incurred during such budget period and any of the three preceding months, whether paid or unpaid, to the extent that the expenses have not been deducted previously in establishing eligibility;

3. Current payments (that is, payments made in the current budget period) on expenses incurred before the current budget period and not previously deducted from income in any budget period in establishing eligibility for such period; and

4. If the individual's eligibility for medical assistance was established in each such budget period preceding the current budget period, expenses incurred before the current budget period but not previously deducted from income in establishing eligibility, to the extent that such expenses are unpaid and are:

a. Described in 12VAC30-110-1050; and

b. Carried over from the preceding budget period or periods because the individual had a spenddown liability in each such preceding period that was met without deducting all such incurred, unpaid expenses.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 5, eff. April 30, 1995.

12VAC30-110-1070. Projection of expenses.

Medical and remedial care expenses that are not for institutional care services (excluding acute care facility services) shall not be projected. For example, insurance premiums are not an institutional service, therefore, such expenses shall not be projected. Nor shall expenses that are included in a prepaid package of service be deducted prior to the date the services are rendered (e.g., charge for prenatal care and delivery services and orthodontia).

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 6, eff. April 30, 1995.

12VAC30-110-1080. Projection of institutional care expenses.

Institutional care expenses, except for expenses for services rendered in an acute care facility, shall be projected. The amount of the projected expenses shall be based on the Medicaid per diem rate or a combination of actual incurred institutional expenses and projected expenses at the Medicaid per diem rate. Projection of institutional care expenses does not preclude deduction of actually incurred expenses and in some instances requires the use of a combination of actually incurred expenses and projected expenses. Those circumstances are:

1. When the projected institutional care expense is less than the individual's spenddown liability for the budget period; and

2. When there is current liability for bills from a period prior to the current retroactive and prospective budget periods. A bill written off as a bad debt is not a current liability.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 7, eff. April 30, 1995.

12VAC30-110-1090. [Reserved]. (Reserved)

12VAC30-110-1100. Individuals and families with income below the MNIL.

Cases which have only regular income that is below the MNIL do not have to spenddown to become income eligible. Such cases shall be maintained in the same manner as categorically needy cases; however, effective the month that income exceeds the MNIL or the first month following the timely notification period, the case must be treated as all other spenddown cases. When a monthly budget period is used, increases in income shall be counted beginning the month the change occurs, unless a Medicaid card has already been issued for that month and a change in circumstances occurs too late in the month to provide "timely" notice under 42 CFR 435.919 prior to suspending Medicaid benefits.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 9, eff. April 30, 1995.

12VAC30-110-1110. [Reserved]. (Reserved)

12VAC30-110-1120. Reconciliation.

At the end of the first prospective budget period and any subsequent prospective budget period, or if earlier when any significant change occurs, the agency must reconcile any projected amounts with the actual amounts incurred, or with changes in circumstances to determine if the adjusted deduction of incurred expenses reduces countable income to the income standard.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 11, eff. April 30, 1995.

12VAC30-110-1130. Eligibility.

Except as provided in 12VAC30-110-1120, an individual is eligible on the first day of the month in which spenddown liability is met. However, expenses used to meet spenddown liability are not reimbursable under Medicaid. The amount paid by Medicaid will be reduced to the extent necessary to prevent the transfer of an individual's spenddown liability to the Medicaid program.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 12, eff. April 30, 1995.

12VAC30-110-1140. Spenddown entitlement.

A. When excess income has been spent or incurred, the applicant must request reinstatement of his application, submitting the "Record of Medical Expenses - Medicaid" together with bills or receipts for medical services either paid or incurred, and evidence of third party payment or denial of payment if applicable. No new application form is completed at that time. If there has been no change which renders him ineligible, he becomes eligible for the remainder of the six-month period.

B. The request for reinstatement must be processed in the same manner as an application, with notice to the client of the disposition of his request.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 13, eff. April 30, 1995.

12VAC30-110-1150. Qualified Medicaid Beneficiaries.

A. When an enrolled medically indigent Medicare beneficiary meets the medically needy spenddown, he continues to be eligible for Medicaid as a Qualified Medicare Beneficiary (QMB) but is also eligible for Medicaid as medically needy beginning the date the spenddown was met, and ending the last day of the six-month spenddown period.

B. No new application for QMB shall be required to continue entitlement as a QMB at the end of the budget period; however, the individual must file a new application in order for eligibility for full Medicaid benefits in subsequent budget periods.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 14, eff. April 30, 1995.

12VAC30-110-1160. Retroactive spenddown; countable income; entitlement date.

A. Eligibility for retroactive Medicaid entitlement must be determined in all cases in which an individual reports receiving a Medicaid-covered service during the three-month period prior to the month of application, whether the individual is applying for Aid to Families with Dependent Children, auxiliary grant or Medicaid. Eligibility for retroactive coverage shall be determined at the same time as the ongoing eligibility is determined, using the same application.

B. The amount of countable income available to the applicant's family or budget unit is determined for the three-month period prior to application if none of the three months was included in a prior Medicaid coverage or spenddown period, and all other eligibility factors were met. Countable income for the period shall be applied to the appropriate income limit for the period (¼ the annual income limit).

If any of the months in the retroactive period were included in a previous coverage or spenddown period, those months cannot be included in the retroactive period. Only the income received in the retroactive months not included in previous periods are counted in determining retroactive eligibility. Countable income is applied to the appropriate income limit for the number of months actually included in the retroactive period.

C. When the retroactive spenddown is met by medical expenses incurred before the retroactive period, eligibility will begin the first day of the retroactive period.

When the retroactive spenddown is met be expenses incurred during the retroactive period, eligibility will begin the date the spenddown was met.

Eligibility will exist for the remainder of the retroactive period.

When the spenddown is not met, retroactive eligibility does not exist.

If an applicant states that a covered service was received in any one of the three retroactive months, eligibility is to be determined for all three retroactive months, regardless of the service date.

D. The Medicaid application shall be processed to determine both retroactive and prospective Medicaid eligibility beginning with the month of application. Notice of both determinations must be provided in written form to the applicant.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-10-8.2600 § 15, eff. April 30, 1995.

12VAC30-110-1170. [Reserved]. (Reserved)

Part VII
Medical Assistance Eligibility Resulting from Welfare Reform

12VAC30-110-1200. Definitions.

The following words and terms, when used in this part, shall have the following meanings unless the context indicates otherwise:

"Aid to Families with Dependent Children" or "AFDC" means the public assistance programs authorized in §§ 406 and 407 of the Social Security Act (42 USC §§ 606 and 607), and administered by the Virginia Department of Social Services. The term "AFDC" as used in this part includes Aid to Families with Dependent Children - Unemployed Parent (AFDC-UP).

"Assistance unit" means those persons who have been determined categorically and financially eligible to receive assistance as defined in the Virginia Department of Social Services' Virginia Independence Program regulations (22VAC40-35-5 et seq.).

"Caretaker-relative" means the natural or adoptive parent or other relative, as specified in 45 CFR 233.90(c)(1)(v), who is responsible for supervision and care of the needy child.

"Child" means an individual who would be considered a child under the AFDC State Plan.

"Family" means those individuals living in the household whose needs and income were included in determining the AFDC eligibility of the assistance unit at the time that the AFDC benefits were terminated and individuals under AFDC sanction whose income but not needs were included. It also includes those individuals whose needs and income would be taken into account in determining the AFDC eligibility of the caretaker-relative's assistance unit under the AFDC State Plan if the family were applying in the current month.

"Family income" means all the earned income, as defined in the AFDC State Plan, of all the members of the family without application of any disregards except the family's cost of child care necessary for the employment of the caretaker-relative or those disregards required by another federal statute.

"Transitional medical assistance" means extended medical assistance to participants in VIEW whose AFDC has been terminated voluntarily or involuntarily.

"Virginia Initiative for Employment not Welfare" or "VIEW" means the Job Opportunities and Basic Skills Training Program as implemented in the Commonwealth.

Statutory Authority

§§ 32.1-325 and 63.1-133.46 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 15, eff. June 1, 1996.

12VAC30-110-1210. (Repealed.)

Historical Notes

Derived from Virginia Register Volume 12, Issue 15, eff. June 1, 1996; repealed, Virginia Register Volume 19, Issue 18, eff. July 1, 2003.

12VAC30-110-1220. Scope of coverage.

A. Subject to subsection B of this section, during the 12-month extension period, the amount, duration, and scope of medical assistance made available to a family shall be the same as if the family were still receiving AFDC.

B. The Department of Medical Assistance Services (DMAS), at its option may, pursuant to the requirements of the Health Insurance Premium Payment Program (HIPP) in Part XII (12VAC30-130-740 et seq.) of 12VAC30-130, pay a family's expenses for premiums, deductibles, coinsurance, and similar costs for health insurance or other health care coverage offered by an employer of the caretaker-relative or by an employer of the absent parent of a dependent child. If an employer offers such coverage to the caretaker-relative:

1. To receive transitional medical assistance coverage for himself and his family, the caretaker-relative shall make application for such employer coverage, but only if:

a. The employer does not require the caretaker-relative to make financial contributions for the coverage (whether through payroll deduction, payment of deductibles, coinsurance, or similar costs, or otherwise); and

b. DMAS provides, directly or otherwise, payment of any of the premium amount, deductible, coinsurance, or similar expense that the employee is otherwise required to pay; and

2. DMAS treats the coverage under the employer plan as a third party liability (as of May 1, 1995, under § 1902(a)(25) of the Social Security Act) (42 USC § 1396a(a)(25)).

C. DMAS shall consider payments for premiums, deductibles, coinsurance, and similar expenses as payments for medical assistance.

Statutory Authority

§§ 32.1-325 and 63.1-133.46 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 15, eff. June 1, 1996.

12VAC30-110-1230. Written notice and reporting requirements.

A. Notices. During the third, sixth and ninth months of any transitional assistance DMAS shall notify the family of the reporting requirements.

B. Reporting requirements. To receive continued transitional medical assistance, a family shall report the following to the local department of social services, not later than the 21st day of the fourth, seventh, and tenth month in the period of transitional assistance: the family's gross monthly earnings and the family's costs for child care necessary for the employment of the caretaker-relative in each month of the preceding three-month period. The local department of social services may permit continued transitional medical assistance, notwithstanding a failure to report, if the family has established good cause for the failure to report on a timely basis.

C. Good cause. The local department of social services may grant an extension regarding the reporting requirements for good cause shown, pursuant to the Medicaid Client Appeals regulations at Part I (12VAC30-110-10 et seq.) of this chapter.

D. Frequency of reporting. A family receiving transitional assistance shall not be required to report more frequently than as required under subsection B of this section.

E. Notice before termination. No termination of assistance shall become effective until the local department of social services provides the family with notice of the grounds for the termination. No termination shall be effective earlier than 10 days after the date of mailing of the notice.

Statutory Authority

§§ 32.1-325 and 63.1-133.46 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 15, eff. June 1, 1996.

12VAC30-110-1240. Appeals.

All appeals regarding the provision of services under this part shall be conducted pursuant to the Medicaid Client Appeals regulations at Part I (12VAC30-110-10 et seq.) of this chapter.

Statutory Authority

§§ 32.1-325 and 63.1-133.46 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 12, Issue 15, eff. June 1, 1996.

12VAC30-110-1300. (Repealed.)

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 13, Issue 18, eff. July 1, 1997; repealed, Volume 27, Issue 9, eff. February 17, 2011; Errata, 27:10 VA.R. 964 January 17, 2011.

Part VIII
Applications for Medicaid

12VAC30-110-1350. Definitions.

"Applicant" means a person who has directly or through his authorized representative made written application for Medicaid at the Department of Medical Assistance Services' Central Processing Unit or at the local social services department serving the locality in which he is a resident or, if institutionalized, the locality in which he last resided outside an institution.

"Authorized representative" means a person who is authorized to conduct the personal or financial affairs for an individual who is age 18 or older.

"Caretaker relative" means an individual who is age 18 or older, who is not a parent, but who is related to a child by blood or marriage and who lives with and assumes responsibility for day-to-day care of the child in a place of residence maintained as his or their own home.

"Competent individual" means a person who has not been judged by a court to be legally incapacitated.

"Conservator" means a person appointed by a court of competent jurisdiction to manage the estate and financial affairs of an incapacitated individual.

"Family substitute representative" means a spouse or designated relative who is willing and able to take responsibility for the individual's personal or financial affairs. The relatives who may be substitute representatives are, in this preferred order, the individual's adult child, parent, adult sibling, adult grandchild, adult niece or nephew, aunt or uncle.

"Guardian" means a person appointed by a court of competent jurisdiction to be responsible for the personal affairs of an incapacitated individual, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of commitment, residence.

"Incapacitated individual" means a person who, pursuant to an order of a court of competent jurisdiction, has been found to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements of his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.

"Legal emancipation" means the minor has been declared emancipated by a court of competent jurisdiction. A married minor is not emancipated unless a court has declared the married minor emancipated from his parents.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 19, Issue 18, eff. June 19, 2003.

12VAC30-110-1360. Right to apply.

A competent individual who is at least 18 years of age cannot be refused the right to complete an application for himself and cannot be discouraged from asking for assistance for himself under any circumstances.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 CFR 435.906 and 435.907.

Historical Notes

Derived from Virginia Register Volume 19, Issue 18, eff. June 19, 2003.

12VAC30-110-1370. Applicant's signature.

The applicant must sign a state-approved official application form, even if another person fills out the form, unless the application is filed and signed by the applicant's parent, caretaker relative, legal guardian or conservator, attorney-in-fact or authorized representative. If the applicant cannot sign his name, but can make a mark, the mark must be correctly designated and witnessed by one person.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 CFR 435.906 and 435.907.

Historical Notes

Derived from Virginia Register Volume 19, Issue 18, eff. June 19, 2003.

12VAC30-110-1380. Authorized representative for individual age 18 or older.

A. Patients in the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) facilities may have applications submitted on their behalf by employees of the DMHMRSAS.

B. The authorized representative of an incapacitated individual shall be the individual's legally appointed guardian or conservator.

C. A competent individual may sign an application on his own behalf or may designate anyone to be his authorized representative to file a Medicaid application on his behalf. If a competent individual wants another person to file a Medicaid application for him, he must designate the authorized representative in a written statement that is signed by the individual applicant. The authorized representative statement is valid for the life of the Medicaid application or until the applicant changes or removes his authorized representative. If the application is approved, the authorized representative statement is valid for any subsequent review and redetermination until the applicant's Medicaid eligibility is cancelled. If the applicant reapplies for Medicaid after Medicaid is cancelled, he must sign the application or provide a new authorized representative statement.

D. When an individual has given power-of-attorney to another person that includes the power to conduct the applicant's business affairs, the attorney-in-fact is considered the applicant's authorized representative.

E. For an individual who has not been determined by a court to be legally incapacitated, but who is reported to be mentally unable to sign his name or to make a mark, an application may be signed under the following circumstances:

1. When it is reported that an individual cannot sign the application and the individual does not have an attorney-in-fact, an authorized representative or a family substitute representative, the individual's inability to sign the application must be verified by a written statement from the individual's physician that the individual is mentally unable to sign and file a Medicaid application because of the individual's diagnosis or condition.

2. If the individual does not have an attorney-in-fact and has not signed a statement authorizing another person or organization to apply for Medicaid on his behalf, the applicant's spouse will be considered to be the individual's authorized representative. If the individual is not married or is estranged from his spouse or his spouse is unable to represent him, the individual's authorized representative shall be a family substitute representative.

3. Treatment of an individual who is unable to sign and who has no authorized representative or family substitute representative:

a. When motion to appoint a guardian or conservator has been filed with the court, but a final determination has not been ordered. When an individual's physician has verified that he is unable to sign the Medicaid application and the individual has no legal representative, a determination of Medicaid eligibility shall not be completed until a guardian or conservator has been appointed. Any application filed on behalf of such individual shall be held in pending status until the appointment of a legal guardian or conservator. The eligibility worker shall mail the legal guardian or conservator a copy of the Medicaid application. The legal guardian or conservator shall have 10 working days after appointment to sign and return the Medicaid application and documentation of the guardian or conservator's appointment. If the application has not been signed by the deadline, eligibility for Medicaid shall be denied.

b. When motion to appoint a guardian or conservator has not been filed with the court. When a motion to appoint a guardian or conservator has not been filed with the court, the eligibility worker shall refer the individual to the Adult Protective Services unit in the local department of social services. The Medicaid application shall be held in pending status until the adult protective services investigation is complete. If the completed adult protective services investigation concludes that guardianship proceedings will not be initiated, the application must be signed by the applicant or the applicant must sign a statement designating an authorized representative. If after 10 working days the application is not signed, eligibility for Medicaid shall be denied.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 CFR 435.906 and 435.907.

Historical Notes

Derived from Virginia Register Volume 19, Issue 18, eff. June 19, 2003.

12VAC30-110-1390. Authorized representative for children under 18 years of age.

A. Patients under 18 years of age in facilities operated by the DMHMRSAS may have applications submitted by employees of the DMHMRSAS.

B. A minor child under 18 years of age who is a parent may apply for Medicaid for his own child.

C. An authorized employee of the public or private child-placing agency that has custody of the child must sign the Medicaid application for a child under 18 years of age that is in foster care.

D. A child applicant who is under 18 years of age is not legally able to sign a Medicaid application for himself unless he is legally emancipated from his parents. If the child applicant is not legally emancipated, his parents shall sign the application on the child applicant's behalf. If the child applicant is married and the child applicant's spouse is 18 years of age or older, the spouse may sign the application on the child applicant's behalf. If the child applicant does not live with a parent or spouse who is 18 years of age or older, the adult who has legal custody or who is the legal guardian of the child applicant, or the caretaker relative with whom the child applicant lives must sign the application. A child applicant's parent, guardian, legal custodian or caretaker relative may designate an authorized representative to complete a Medicaid application on behalf of the child applicant. The authorization must be in writing in accordance with 12VAC30-110-1380.

E. If the child applicant has no adult guardian, adult caretaker relative, or legal custodian, then the caregiver for the child applicant is responsible for seeking custody or guardianship of the child applicant:

1. If a motion has been filed in court to appoint a guardian or seek legal custody of the child, the Medicaid application shall be held in a pending status. If verification is received within 10 working days that court action has been initiated, the application will be continued until the guardian is appointed or custody is awarded. When the guardian has been appointed or custody awarded, the eligibility worker must provide the Medicaid application to the guardian or custodian. The guardian or custodian must return the signed application and documentation of his appointment within 10 working days. If the application or documentation is not returned by either 10-day deadline, Medicaid eligibility shall be denied.

2. If guardianship or custody procedures have not been filed with the court, the eligibility worker must refer the child to the appropriate child welfare service worker. The application for Medicaid shall be held in a pending status until the service investigation is completed and any court proceedings are completed. If the court emancipates the child, the child must sign the application and return it to the eligibility worker within 10 working days. If a guardian is appointed or custody awarded, the eligibility worker must provide the Medicaid application to the guardian or custodian. The guardian or custodian must return the signed application and documentation of his appointment within 10 working days. If the application or documentation is not returned by the deadline, Medicaid eligibility shall be denied.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 CFR 435.906 and 435.907.

Historical Notes

Derived from Virginia Register Volume 19, Issue 18, eff. June 19, 2003.

12VAC30-110-1400. Authorized representative for a deceased applicant.

An application may be made on behalf of a deceased person by his guardian or conservator, attorney-in-fact, executor or administrator of his estate, his surviving spouse, or his surviving family member, in this order of preference: adult child, parent, adult sibling, adult niece or nephew, or aunt or uncle. Such application must be filed within the three-month period subsequent to the month in which the death occurred if the deceased applicant received a Medicaid-covered service on or before the date of death and the date of service occurred within a month covered by the Medicaid application.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 CFR 435.906 and 435.907.

Historical Notes

Derived from Virginia Register Volume 19, Issue 18, eff. June 19, 2003.

12VAC30-110-1410. Persons prohibited from signing an application.

An employee of, or an entity hired by, a medical service provider who could obtain Medicaid payments shall not sign a Medicaid application for a deceased individual or on behalf of an individual who cannot designate an authorized representative.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia; 42 CFR 435.906 and 435.907.

Historical Notes

Derived from Virginia Register Volume 19, Issue 18, eff. June 19, 2003.

12VAC30-110-1500. Working individuals with disabilities; basic coverage group (Ticket to Work and Work Incentive Improvement Act (TWWIIA)).

A. Definitions.

"Eligible person" means someone who is (i) disabled: an applicant is deemed to be disabled for the purposes of program eligibility if he is enrolled in the Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) programs. If the applicant has not had a disability determination through the Social Security Administration, he must have such a determination through the Disability Determination Services program; (ii) employed or can show proof of imminent prospective employment; (iii) between the ages of 16 years and 64 years; (iv) not subject to spending down of excess resources; (v) not an inpatient in an institution of mental disease (IMD), nor an inmate in a public institution that is not medical facility pursuant to the Act § 1902(a)(10)(A)(ii)(XV).

B. Scope/purpose. The purpose of this program shall be to afford persons who are disabled with the opportunity to be employed and retain more of their earned income without risking the loss of their Medicaid coverage of critical health care benefits.

C. In conformance with 12VAC30-30-20, 12VAC30-40-280, 12VAC30-40-290, and 12VAC30-40-105, eligible persons must meet the definition in subsection A of this section to be approved for this program.

D. In conformance with 12VAC30-40-105, working individuals with disabilities must meet these requirements for continuing eligibility pursuant to the Act § 1902(a)(10)(A)(ii)(XV):

1. Continue to meet the disability, age, and employment criteria described in this section. Individuals who, as enrollees, are unable to maintain employment due to illness or unavoidable job loss may remain in the program as unemployed for up to six months;

2. Have enrollee-countable earned income of no more than 200% FPL;

a. The standard SSI methodology shall be used to determine "countable" income;

b. The enrollee shall be treated as a "household of one" and spousal income shall be disregarded for ongoing enrollee eligibility; and

3. Have resources or assets up to the annual SSI "threshold amount" (Social Security Act, § 1619(b)) as established for Virginia by the Social Security Administration (SSA), if such resources or assets are accumulated solely from enrollee earnings after the individual is enrolled with Medicaid Buy-In under § 1902(a)(10)(A)(ii)(XV).

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.

12VAC30-110-1600. 12VAC30-110-1600. (Reserved).. (Reserved)

Statutory Authority

§ 32.1-351 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 27, Issue 7, eff. January 5, 2011.

12VAC30-110-1610. Deemed newborn eligibility under FAMIS..

A child born to a woman who is eligible for and receiving Title XXI coverage through the Family Access to Medical Insurance Security Plan (FAMIS) or related waivers, such as FAMIS MOMS, as of the date of the child's birth and who is screened to be income eligible for coverage under Medicaid is deemed Medicaid/FAMIS eligible for one year from his date of birth.

Statutory Authority

§ 32.1-351 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 27, Issue 7, eff. January 5, 2011.

12VAC30-110-1620. Coverage of former foster care youth.

A. The Title IV-A agency or the Department of Medical Assistance Services Central Processing Unit determines eligibility for Title XIX services.

B. Former foster care children younger than the age of 26 years who are not otherwise mandatorily eligible in another Medicaid classification and who were on Medicaid and in foster care when they turned age 18 years or aged out of foster care are eligible for medical assistance as specified. Individuals qualifying under this eligibility group shall meet the following criteria:

1. They shall be younger than the age of 26 years;

2. They shall not be otherwise eligible for or enrolled in mandatory coverage under the state plan; and

3. They were in foster care in a state other than Virginia and were enrolled in Medicaid under the state plan of that state when they turned age 18 years or at the time of aging out of the foster care program.

Statutory Authority

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

Historical Notes

Derived from Virginia Register Volume 34, Issue 19, eff. June 15, 2018.

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