Title of Regulation: 12VAC30-40. Eligibility Conditions and Requirements (amending 12VAC30-40-10).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 2, 2015.

Effective Date: December 17, 2015.

Agency Contact: Emily McClellan, Regulatory Supervisor, Department of Medical Assistance Services, Policy Division, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the State 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 State 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.

Purpose: The purpose of this action is to promulgate State Plan regulations to adopt the option offered under the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA) to establish a data match with the Social Security Administration to verify United States citizenship and identity through the use of an individual's Social Security number. Adoption of this option will result in the implementation of an electronic data match with the Social Security Administration and reduce the number of individuals who will need to provide original documentation of United States citizenship and identity. This change will protect the health, safety, and welfare of the citizens of the Commonwealth by streamlining the application documentation and verification process, thus improving Medicaid enrollment timeliness and a workload reduction for most local department of social services eligibility workers.

Rationale for Using Fast-Track Process: The fast-track rulemaking process is being utilized to promulgate this change as it is expected to be a noncontroversial amendment to existing regulations. Existing regulations currently require an applicant for or recipient of Medicaid to verify citizenship and identity with original documentation. This action will serve to provide a way to meet this requirement electronically without the individual applicant having to provide original documentation.

Substance: The section of the State Plan for Medical Assistance that is affected by this action is 12VAC30-40-10. This action adopts the eligibility verification options made available through § 211 of CHIPRA of 2009.

The Deficit Reduction Act of 2005 (DRA), signed into law on February 8, 2006, first mandated that applicants for and recipients of Medicaid who claim to be United States citizens provide documentation of their United States citizenship and identity. This provision of the DRA became effective on July 1, 2006, and was implemented in Virginia on that date. Prior to implementation of this requirement, individuals who applied for or received Medicaid could self-declare their United States citizenship, but were not required to provide documentation to support the declaration. Regulations promulgated by the Centers for Medicare and Medicaid Services (CMS) took the requirement to verify one step further by mandating that only original documentation could be accepted to verify an individual's citizenship and identity; copies of original documents could not be accepted.

The requirement to provide original documentation served to be a barrier to enrollment in the Medicaid program. Many applicants and recipients had copies of documents, but did not have original documentation. Payment for original documents and the length of time it took to receive out-of-state documentation became an issue and resulted in some applications for Medicaid being denied due to failure to provide this necessary verification.

Section 211 of CHIPRA gives states the ability to enter into a data match with the Social Security Administration to verify the citizenship and identity of Medicaid applicants and recipients who claim to be United States citizens. Because provision of a Social Security number is already a condition of eligibility for Medicaid, adoption of this option will streamline the eligibility process and thereby create a seamless process for most Medicaid applicants and recipients. Additionally, adoption of this option should result in workload reduction for most local department of social services eligibility workers as they will no longer be required to request original documentation and provide the follow up that has been needed to get the necessary documentation.

Issues: There is no disadvantage to the public or the Commonwealth with the adoption of this regulation. The advantages to the state, the agency, and the public are that the Medicaid program will be able to electronically verify the United States citizenship and identity of Medicaid applicants and recipients rather than requiring them to provide original documentation.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed regulations will adopt an automated process for verification of citizenship and identity for Medicaid directly with the Social Security Administration.

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

Estimated Economic Impact. The proposed regulations will adopt an automated process for verification of citizenship and identity for Medicaid directly with the Social Security Administration.

Pursuant to the Deficit Reduction Act of 2005, Centers for Medicare and Medicaid Services has been requiring that applicants for Medicaid provide original documentation to verify their citizenship and identity. The Children's Health Insurance Program Reauthorization Act of 2009 allows states the ability to enter into a data match directly with the Social Security Administration to verify the citizenship and identity of applicants. The proposed regulations will take advantage of this newly available alternate verification process.

The main economic benefit of the proposed change will accrue to the Medicaid applicants who do not have their original citizenship and identity documents readily available. They will no longer have to incur costs associated with obtaining original documentation of their U.S. citizenship and identity. The proposed change will also eliminate the delays in accessing health care that would have been present due to the time needed to obtain the required documentation. Finally, the proposed changes are expected to reduce the workload of Department of Social Services eligibility workers as the verification of citizenship and identity will be performed automatically.

On the other hand, the Department of Medical Assistance Services anticipates that the automation of the verification process will require approximately $24,900 in state funds and $224,100 in federal funds to accomplish.

Businesses and Entities Affected. The proposed regulations will primarily affect Medicaid applicants. Approximately 10,000 applications are received per month.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

Projected Impact on Employment. No significant direct effect on employment is expected.

Effects on the Use and Value of Private Property. No effect on the use and value of private property is expected.

Small Businesses: Costs and Other Effects. There are no expected direct costs or other effects on small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed regulations do not have an adverse affect on small businesses.

Real Estate Development Costs. No significant effect on real estate development costs is expected.

Legal Mandate. 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 Administrative Process Act and Executive Order Number 107 (09). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation 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. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Medical Assistance Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

This regulatory action adopts an option offered to states under the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA). Section 211 of CHIPRA provides an option to adopt an alternative process for verification of citizenship and identity for Medicaid, giving states the ability to enter into a data match with the Social Security Administration to verify the citizenship and identity of Medicaid applicants and recipients who claim to be United States citizens. The amendments set out the data match document verification method and include document verification through the data match program as a method to meet the proof of eligibility requirements of citizenship.

Part I
General Conditions of Eligibility

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

Each individual covered under the plan:

1. Is financially eligible (using the methods and standards described in Parts II and III of this chapter) to receive services.

2. Meets the applicable nonfinancial eligibility conditions.

a. For the categorically needy:

(1) Except as specified under items subdivisions 2 a (2) and (3) below of this section, for AFDC-related individuals, meets the nonfinancial eligibility conditions of the AFDC program.

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

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

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

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

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

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

3. Is residing in the United States and:

a. Is a citizen or national of the United States; or

b. Is a qualified alien as defined under Public Law 104-193 who arrived in the United States prior to August 22, 1996;

c. Is a qualified alien as defined under Public Law 104-193 who arrived in the United States on or after August 22, 1996, and whose coverage is mandated by Public Law 104-193;

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

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

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

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

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

(4) An alien who belongs to one of the following classes:

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

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

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

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

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

(f) Aliens currently in deferred action status; and

(g) Aliens whose visa petition has been approved and who have a pending application for adjustment of status;

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

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

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

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

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

4. Is a resident of the state, regardless of whether or not the individual maintains the residence permanently or maintains it the residence as a fixed address. The state has open agreement(s) interstate residency agreements.

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

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

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

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

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

b. Applicant or recipient is Is required, under § 1903(x) to furnish satisfactory documentary evidence of both identity and of U.S. citizenship upon signing the declaration of citizenship required by § 1137(d) unless citizenship and identity has been verified by the Commissioner of Social Security pursuant to § 211 of the Children's Health Insurance Program Reauthorization Act (CHIPRA), or the individual is otherwise exempt from this requirement. Qualified aliens signing the declaration of satisfactory immigration status required by § 1137(d) must also present and have verified documents establishing the claimed immigration status under § 137(d). Exception: Nonqualified aliens seeking medical assistance for the treatment of an emergency medical condition under § 1903(v)(2) as described in § 1137(f).

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

9. Is not required, as an individual child or pregnant woman, to meet requirements under § 402(a)(43) of the Act to be in certain living arrangements. (Prior to terminating AFDC individuals who do not meet such requirements under a state's AFDC plan, the agency determines if they are otherwise eligible under the state's Medicaid plan.)

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

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

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

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