Administrative Code

Virginia Administrative Code
9/21/2021

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.

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