Administrative Code

Virginia Administrative Code
9/21/2021

Article 3. Resource Eligibility Determinations for Institutionalized Spouses

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.

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.

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