Title of Regulation: 12VAC30-100. State Programs (amending 12VAC30-100-260, 12VAC30-100-270, 12VAC30-100-320, 12VAC30-100-340).

Statutory Authority: §§ 32.1-325 and 32.1-330.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 7, 2015.

Effective Date: October 22, 2015.

Agency Contact: Victoria Simmons, Regulatory Coordinator, Division of Policy and Research, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-6043, FAX (804) 786-1680, or email victoria.simmons@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia grants the Board of Medical Assistance Services the authority to administer and amend the Plan for Medical Assistance. Section 32.1-324 of the Code of Virginia authorizes the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the Plan for Medical Assistance according to the board's requirements. The Medicaid authority as established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

DMAS provides financial assistance to individuals who have been diagnosed as HIV positive to purchase group health insurance plan benefits through their employers. This assistance is permitted under the authority of § 32.1-330.1 of the Code of Virginia and the HIV Health Care Services Program (42 USC § 300ff-21 et seq.).

Purpose: The purpose of this regulatory change is to amend the current HIV Premium Assistance Program regulations in three ways: (i) refer to individual and spousal income, rather than family income, when evaluating individuals for this program's eligibility; (ii) expand the list of countable liquid assets that DMAS may evaluate during eligibility determination; and (iii) provide for coverage of family members if the participant's health insurance is the sole source of health insurance for the family.

DMAS believes that the proposed amendments contribute to preserving the health, safety, and welfare of the citizens of the Commonwealth.

Rationale for Using Fast-Track Process: The fast-track rulemaking process is being utilized to promulgate this change in regulatory language as it is expected to be noncontroversial. Removing this nonemployment requirement enables persons who are still able to work to remain in the workforce, which benefits the general economy as well as these individuals' families.

Substance: 12VAC30-100-260 - Currently, Medicaid regulations require that an HIV Premium Assistance Program participant's family income not exceed 250% of the federal poverty level. This program provides assistance to qualifying individuals to purchase private health insurance, which covers their medical care for their HIV diagnoses. In some instances, program participants have been required to move into residences with their adult children. This current regulatory wording requires DMAS to consider the income of these employed adult children in determining if the parent can receive premium assistance. DMAS believes it is not appropriate to consider the income of adult children in determining eligibility for this program. It is more cost effective for DMAS to provide premium assistance for these individuals as compared to having these individuals become eligible for the full range of Medicaid-covered services. DMAS recommends the modification of the family income to include only that of the program participant and the program participant's spouse.

12VAC30-100-270 - Currently, this Medicaid regulation contains a specific finite list of liquid assets that DMAS considers when evaluating an individual's eligibility for the HIV Premium Assistance Program. If a participant's financial circumstances change during this period of program eligibility, DMAS needs to be able to consider all available liquid assets in determining eligibility. The appropriated funds for this program are limited and individuals who have sufficient assets to afford their care should not be permitted to access these limited funds. Permitting DMAS to consider liquid assets beyond the finite list will help ensure that funds are allocated appropriately. Adding reference from § 6.2-1100 of the Code of Virginia that lists liquid assets accomplishes this.

12VAC30-100-340 - Currently, this Medicaid regulation contains all the requirements of § 32.1-330.1 of the Code of Virginia except for the requirement to provide "Coverage of family members, if the HIV-infected person's policy is the sole source of health insurance." Since family coverage is already unofficially permitted in DMAS policy, this change will create no practical difference in this program. The amendment adds the language of § 32.1-330.1 to the regulation.

Issues: These changes will not have any disadvantages to the Commonwealth, public, or government officials. The advantage of changing "family income" to the "participant and spouse income" is to prevent potential applicants from being disqualified from the program due to the income earned by their adult children. The advantage of broadening the list of liquid assets that DMAS can consider in determining eligibility is to ensure that benefits are provided to appropriate individuals. There is no advantage to adding reference to coverage of family members as this merely adds current policy to regulation.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Medical Assistance Services (DMAS) administers the Human Immunodeficiency Virus (HIV) Premium Assistance Program under the authority of § 32.1-330.1 of the Code of Virginia. Participants in the HIV premium assistance program must be unable to work or have a substantial likelihood of being unable to work within three months of becoming eligible to receive the assistance. In addition, a physician must certify this condition.

DMAS is proposing to amend regulations for the HIV Premium Assistance program in 3 areas: (1) to refer to individual/spousal income, rather than family, when evaluating individuals for program eligibility; (2) to expand the list of countable liquid assets that DMAS may evaluate during eligibility determination; and (3) to include a provision for coverage of family members if the participants' health insurance is the sole source of health insurance for the family.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Currently, DMAS counts family income to determine if an individual can qualify for HIV premium assistance. The agency proposes that only the individual's and spouse's income will be considered when evaluating an individual for this assistance. Sometimes these individuals have to move into their adult employed children's homes and under the current regulations these children's incomes count in determining their parent's eligibility.

Countable liquid assets are now limited to the following: a) savings accounts, b) checking accounts, c) money market certificates, d) certificates of deposit, e) mutual funds, and f) stocks and bonds. DMAS proposes to add "All other liquid assets as provided in § 6.2-1100 of the Code of Virginia" to the list of countable liquid assets. Under this portion of the Code of Virginia liquid assets are defined as:

(i) cash on hand; (ii) cash on deposit in Federal Home Loan Banks, Federal Reserve Banks, savings institutions, or in commercial banks that is withdrawable upon not more than 30 days' notice and that is not pledged as security for indebtedness; (iii) the liquid asset fund of the United States League of Saving Institutions; (iv) obligations of, or obligations that are fully guaranteed as to principal and interest by, the United States; or (v) any other asset that the Commissioner designates as a liquid asset. Any deposits in financial institutions under the control or in the possession of any supervisory authority are not liquid assets.

This is intended to more fully reflect all assets that an individual may acquire in determining eligibility for HIV premium assistance.

When the section of this regulation on health insurance premium payments was initially drafted, DMAS did not address coverage of family members in cases in which the participant's policy was the sole source of health insurance. The agency proposes to include a provision for coverage of family members if the participants' health insurance is the sole source of health insurance for the family.

All of the funding for the HIV Premium Assistance Program is spent each year. The funding is the limiting factor as toward how much is spent, not the number of people who qualify. The proposed amendments will just change who receives how much. In that sense, the proposed amendments may be considered beneficial in that they help enable the funds to be distributed to those who are most needy. Those who lose out on premium assistance may feel otherwise.

Businesses and Entities Affected. The proposed amendments affect individuals with HIV. There are currently 8 individuals in the HIV Premium Assistance Program.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments do not significantly affect costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments will not adversely affect small businesses.

Real Estate Development Costs. The proposed amendments will not affect real estate development costs.

Legal Mandate

General: The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order Number 17 (2014). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulatory action would apply,

• the identity of any localities and types of businesses or other entities particularly affected,

• the projected number of persons and employment positions to be affected,

• the projected costs to affected businesses or entities to implement or comply with the regulation, and

• the impact on the use and value of private property.

Small Businesses: If the proposed regulatory action will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget regarding the regulations concerning the HIV Premium Assistance Program. The agency raises no issues with this analysis.

Summary:

The amendments to the Human Immunodeficiency Virus (HIV) Premium Assistance Program include (i) referring to individual and spousal income, rather than family income, when evaluating individuals for program eligibility; (ii) expanding the list of countable liquid assets that may be evaluated during eligibility determination; and (iii) including provision for coverage of family members if the participant's health insurance is the sole source of health insurance for the family.

12VAC30-100-260. Eligibility requirements.

An applicant will be determined to be eligible for the HIV Premium Assistance Program if the individual:

1. Is a Virginia resident at the time of application and is:

a. A citizen of the United States;

b. An alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law, including an alien who is lawfully present in the United States pursuant to 8 USC § 1101 et seq.; or

c. An alien lawfully admitted under authority of the Indochina Migration and Refugee Assistance Act of 1975, 22 USC § 2601 et seq.;

2. Is certified by a licensed physician to be HIV positive;

3. Is certified by a licensed physician to be unable to work or to have a substantial likelihood of being unable to work within three months of the date of the physician's certification due to the HIV infection;

4. Is eligible for continuation of group health insurance plan benefits through the employer and the provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985, or for continuation of benefits under any type of health insurance plan unless DMAS has reason to believe it is not cost effective;

5. Has family applicant and spouse income no greater than 250% of the poverty level;

6. Has countable liquid assets no more than $10,000 in value; and

7. Is not eligible for Medicaid.

12VAC30-100-270. Determination of countable income and liquid assets.

When determining eligibility for the HIV Premium Assistance Program, the countable income and assets of each applicant shall be determined as follows:

1. Income shall include total projected family applicant and spouse income for the year beginning with the month of application to the program, including but not limited to:

a. Wages;

b. Commissions and fees;

c. Salaries and tips;

d. Profit from self-employment;

e. Dividends or interest income;

f. Disability benefits;

g. Unemployment;

h. Pension or retirement.

2. Countable liquid assets shall include assets available as of the date of the application which are convertible to cash. The following liquid assets shall be counted when determining eligibility:

a. Savings accounts;

b. Checking accounts;

c. Money market certificates;

d. Certificates of deposit;

e. Mutual funds; or

f. Stocks and bonds.; or

g. All other liquid assets as provided in § 6.2-1100 of the Code of Virginia.

12VAC30-100-320. Notification.

The program shall inform an applicant, enrollee, or the individual's representative of the individual's legal rights and obligations and give written notice of the following:

1. The final determination on an application, which shall include the reason or reasons if an applicant is found ineligible;

2. The imminent expiration of program authority and funding;

3. A notice of action to deny, cancel, or suspend program benefits which shall:

a. Include a statement of the proposed action, the reason for the action, and the statutory or regulatory authority for the action;

b. Include notification of the right to appeal the action;

c. Be mailed at least 15 calendar days before the effective date of the action.

12VAC30-100-340. Health insurance premium payments.

A. Premium payments shall be made to the employer, the insurer, or the enrollee, according to procedures established by the program.

B. Applicants and enrollees shall provide information as may be necessary for the payment of health insurance premiums by the program, including but not limited to the name and address of the employer or health insurance company, the last day of employment, the type of policy, the amount of the premium, and the date by which the premium must be paid.

C. Payments under this program are limited to the cost of the health insurance premium currently in effect and shall not include copayments, deductibles, or any other costs incurred by the enrollees. Payments under this program shall include coverage of family members if the enrollee's policy is the sole source of health insurance.