Titles of Regulations: 12VAC30-40. Eligibility Conditions and Requirements (amending 12VAC30-40-10).

12VAC30-110. Eligibility and Appeals (amending 12VAC30-110-1300, 12VAC30-110-1350).

Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 2, 2011.

Effective Date: February 2, 2011.

Agency Contact: Brian McCormick, Regulatory Supervisor, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-8856, FAX (804) 786-1680, or email brian.mccormick@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 Plan for Medical Assistance (Plan). Section 32.1-324 of the Code of Virginia authorizes the Director of DMAS to administer and amend the Plan 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 that will provide for continued Medicaid coverage of lawfully residing noncitizen children (legal immigrant children) under the age of 19 and enable the Commonwealth to receive federal financial participation (FFP) for providing such coverage. Action will also be taken to repeal state-only regulations currently in effect that provide coverage for two groups of legal immigrants using state-only general fund money.

Additionally, this action will serve to promulgate state Plan regulations to provide for full benefit Medicaid coverage for certain groups of lawfully residing noncitizen children under the age of 19 who are currently eligible for federally mandated Medicaid coverage of emergency services only.

The department does not expect that this regulatory action will measurably increase or decrease the numbers of persons who qualify for these groups.

This regulation is essential to protect the health, safety, and welfare of citizens who are children under the age of 19. This regulation will protect the health of noncitizen children by allowing them to receive coverage under the Medicaid program, and provide them with a medical home and comprehensive medical benefits in addition to reducing the amount of uncompensated care provided for this population.

Rationale for Using Fast-Track Process: The fast-track process is being utilized to promulgate this change as it is expected to be a noncontroversial amendment to existing regulations. This regulatory action will allow DMAS to claim FFP for medical services for lawfully admitted noncitizen children under the age of 19 who are currently being paid for using state-only general funds.

Substance: Item 322.V of Chapter 924 of the 1997 Acts of Assembly directed DMAS to provide coverage to lawfully admitted noncitizen children under the age of 19 at the Commonwealth's expense if FFP could not be obtained. Federal reimbursement was not available at the time because these children did not meet the alien criteria established through P.L. 104-193 (The Personal Responsibility and Work Opportunity Reconciliation Act of 1996).

Section 214 of the Childrens Health Insurance Program Reauthorization Act of 2009 (CHIPRA) now provides an option for states to cover certain groups of lawfully residing noncitizens and receive FFP for providing coverage. Virginia is electing to provide coverage under Medicaid to children under the age of 19 who meet the criteria set out in CHIPRA.

Additionally, 12VAC30-110-1300 is being repealed as it will no longer be applicable with the adoption of new language (as set out in 12VAC30-40-10) to cover these children under Medicaid and receive FFP.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104-193, which was enacted on August 22, 1996, substantially changed the Medicaid entitlements for noncitizens. Section 431 of the Act defined "qualified aliens" for the purposes of determining eligibility for public benefits, including Medicaid. Section 401 of the Act provided that aliens who were not "qualified aliens" were not eligible for full coverage under the Medicaid program, although they may be eligible for federally mandated coverage of an emergency medical service.

In an effort to comply with the federal law and avoid disruption in medical services for two vulnerable groups of legal aliens who had resided in the United States prior to the enactment of the new law and who would not be able to meet the new requirements, Chapter 924 of the 1997 Acts of Assembly (Item 322 V) directed DMAS to promulgate regulations to implement the federal policy and to continue to provide medical assistance to elderly individuals receiving an institutional level of care and children younger than 19 years of age.

All aliens receiving Medicaid and residing in long-term institutional facilities or participating in home-based and community-based waivers who were eligible for full Medicaid benefits on June 30, 1997, continued to be eligible for full Medicaid benefits beginning July 1, 1997, at state expense because FFP was not available. Further, in order to continue medical services to immigrant children, Item 322.V of the 1997 Appropriations Act directed DMAS to provide full medical assistance to noncitizens ineligible for Medicaid because of their alien status pursuant to P.L. 104-193, who were under the age of 19 and would be eligible for full Medicaid benefits if the alien requirements prior to the passage of P.L. 104-193 were still in effect. Coverage of these children was provided at state expense as well because FFP was not available.

Since that time, DMAS has continued to provide coverage to these two groups of individuals at state expense. The group of elderly individuals residing in long-term institutional facilities or participating in home-based and community-based waivers was a fixed group of individuals receiving coverage as of June 30, 1997. There is no further need for state coverage of this group as all individuals have expired. Therefore, action is taken with this regulatory change to repeal language requiring the state to provide coverage to this group of individuals at state expense.

DMAS continues to provide coverage at state expense to the group of lawfully admitted noncitizen children under the age of 19 who would be eligible for full Medicaid benefits if the alien requirements prior to the passage of P.L. 104-193 were still in effect. This regulatory action will allow for FFP for coverage of this group of children.

As a result of the option allowed under CHIPRA, DMAS is electing, through this regulatory change, to receive FFP for services currently provided using state general funds. In addition to the children listed in subdivision 3 e of 12VAC30-40-10, DMAS is also including in the covered children list the groups of children listed in subdivision 3 e of 12VAC30-40-10, as the federal Medicaid authority (the Centers for Medicare and Medicaid Services) is requiring the addition of these groups as mandated under CHIPRA.

Issues: There is no disadvantage to the public or the Commonwealth with the adoption of this regulation. Adoption of this regulation will result in the Medicaid program receiving FFP for coverage of some of these children as they are currently covered at state expense.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed regulations will move the statement of coverage of certain groups of legal immigrant children from state-only regulations to the State Plan for Medical Assistance so that the federal matching funds could be claimed on the expenditures related to this coverage.

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

Estimated Economic Impact. The proposed regulations will move the statement of coverage of certain groups of legal immigrant children from state-only regulations to the State Plan for Medical Assistance so that the federal matching funds could be claimed on the expenditures related to this coverage.

Medicaid coverage of non-citizen children has been provided by state-only funds. Section 214 of the Children's Health Insurance Program Reauthorization Act of 2009 now provides an option for states to cover these children and provide federal matching funds. Consequently, the Department of Medical Assistance Services (DMAS) is proposing these changes so that federal funds related to the coverage of legal immigrant children can be claimed. When these regulations become effective, DMAS will be able to retroactively claim funds as of April 1, 2009.

Based on the data Fiscal Year 2010 estimates, approximately $1.4 million in total funds are spent for coverage of 1400 legal immigrant children. The proposed changes will allow DMAS to obtain one half of these funds ($700,000) from the federal government.

Since there is no change in coverage or the services provided, the main economic effect of the proposed changes is strictly fiscal in that the Commonwealth will be saving approximately $700,000 annually. The economic effect of additional funds coming into the Commonwealth will depend on how these savings will be used. If the Commonwealth spends these funds, the net economic effect is expected to be expansionary.

Businesses and Entities Affected. The proposed changes apply to the Medicaid coverage of approximately 1400 legal children.

Localities Particularly Affected. There are no localities affected more than others.

Projected Impact on Employment. If the expected savings are spent, an expansionary impact on economy is expected which would have a positive impact on employment.

Effects on the Use and Value of Private Property. Depending on where the savings are spent, a positive impact on the asset value of certain businesses may be expected.

Small Businesses: Costs and Other Effects. The proposed regulations do not create any costs or other adverse effects on small business.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected.

Real Estate Development Costs. No 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 the Department of Planning and Budget's Economic Impact Analysis: The Department of Medical Assistance Services concurs with the economic impact analysis prepared by the Department of Planning and Budget regarding the regulations concerning Legal Immigrant Children (12VAC30-40-10 and 12VAC30-110-1300).

Summary:

This regulatory action moves the statement of coverage of certain groups of lawfully residing noncitizen children from state-only regulations to the State Plan for Medical Assistance in order to permit the Commonwealth to claim Federal Financial Participation (FFP or federal Medicaid matching dollars) for the covered services used by these groups of eligible persons. Currently, the medical services used by these groups of eligible persons are being funded with 100% general funds.

Additionally, this action provides for full benefit Medicaid coverage for certain groups of lawfully residing noncitizen children who currently are eligible only for federally mandated Medicaid coverage of emergency services.

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:

(i) (1) Except as specified under items (ii) (2) and (iii) (3) below, for AFDC-related individuals, meets the nonfinancial eligibility conditions of the AFDC program.

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

(iii) (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 Act, meets the nonfinancial criteria of § 1902(l) of the Act.

(iv) (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 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

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).

e. Is an alien 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) "Qualified aliens" otherwise subject to the five-year waiting period per § 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996;

(2) Citizens of a Compact of Free Association State (i.e., Federated States of Micronesia, Republic of the Marshall Island, and the Republic of Palau) who have been admitted to the United States as nonimmigrants and are permitted by the Department of Homeland Security to reside permanently or indefinitely in the United States;

(3) Individuals described in 8 CFR 103.12(a)(4) who do not have a permanent residence in the country of their nationality and are in statuses that permit them to remain in the United States for an indefinite period of time pending adjustment of status. These individuals include:

(a) Individuals currently in temporary resident status as amnesty beneficiaries pursuant to § 210 or 245A of the Immigration and Nationality Act (INA);

(b) Individuals currently under Temporary Protected Status pursuant to § 244 of the INA;

(c) Family Unity beneficiaries pursuant to § 301 of P.L. 101-649 as amended, as well as pursuant to § 1504 of P.L. 106-554;

(d) Individuals currently under Deferred Enforced Departure pursuant to a decision made by the President; and

(e) Individuals who are the spouse or child of a United States citizen whose visa petition has been approved and who has a pending application for adjustment of status; and

(4) Individuals in nonimmigrant classifications under the INA who are permitted to remain in the United States for an indefinite period, including the following who are specified in § 101(a)(15) of the INA:

(a) Parents or children of individuals with special immigrant status under § 101(a)(27) of the INA as permitted under § 101(a)(15)(N) of the INA;

(b) Fiancees of a citizen as permitted under § 101(a)(15)(K) of the INA;

(c) Religious workers under § 101(a)(15)( R);

(d) Individuals assisting the Department of Justice in a criminal investigation as permitted under § 101(a)(15)(U) of the INA;

(e) Battered aliens; and

(f) Individuals with a petition pending for three years or more as permitted under § 101(a)(15)(V) of the INA.

4. Is a resident of the state, regardless of whether or not the individual maintains the residence permanently or maintains it a fixed address.

The state has open agreement(s).

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, or publicly operated community residences that serve no more than 16 residents, or certain child care institutions.

6. 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 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) of the Social Security Act (pregnant women and women in the post-partum 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 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 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). 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.

Part VIII
Medicaid Eligibility for Aliens

12VAC30-110-1300. Medicaid eligibility for certain aliens and immigrants. (Repealed.)

A. All aliens (qualified and unqualified) receiving Medicaid and residing in long-term institutional facilities or participating in home and community-based waivers on June 30, 1997, who are eligible for full Medicaid benefits on June 30, 1997, will continue to be eligible for full Medicaid benefits after June 30, 1997, at state expense if federal financial participation is not available.

B. All noncitizens ineligible for Medicaid because of alienage pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, shall be provided full medical assistance services, who

1. Are under age 19; and

2. Would be eligible for full Medicaid benefits if the alien requirements prior to the passage of Public Law 104-193 were still in effect.

Part IX Part VIII
Applications for Medicaid