Title of Regulation: 12VAC30-30. Groups Covered and Agencies Responsible for Eligibility Determination (amending 12VAC30-30-70).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: August 18, 2021.

Effective Date: September 2, 2021.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 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 Plan for Medical Assistance and to promulgate regulations. 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 and to promulgate regulations according to the board's requirements.

Item 303 SS 4a of Chapter 2 of the 2018 Acts of Assembly and Chapter 854 of the 2019 Acts of Assembly and Item 313 QQ 3a(1) of Chapter 1289 of the 2020 Acts of Assembly direct DMAS to amend the State Plan for Medical Assistance to implement coverage for newly eligible individuals.

Purpose: This regulation is essential to protect the health, safety, and welfare of citizens in that it implements the General Assembly mandate to expand Medicaid coverage to new populations.

Rationale for Using Fast-Track Rulemaking Process: This regulatory package is expected to be noncontroversial because it describes changes that were approved by the Centers for Medicare and Medicaid Services and that went into effect on January 1, 2019. As of October 18, 2019, over 331,000 individuals had enrolled in Medicaid expansion, and no formal or informal complaints or comments had been received about these changes from any Medicaid member, Medicaid provider, or member of the public.

Substance: Medicaid expansion amended mandatory eligibility categories to include adults aged 19 years or older and younger than 65 years of age, with household incomes below 138% of the federal poverty level. In accordance with federal requirements, individuals in this covered group must be considered for possible hospital presumptive eligibility. This action accomplishes that objective.

Issues: The primary advantage of this regulatory action is that additional individuals will have access to comprehensive health insurance, which should help improve health measures and outcomes across the Commonwealth. There are no disadvantages to the agency or the public.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Director of the Department of Medical Assistance Services (DMAS) proposes to clarify that existing Medicaid hospital presumptive eligibility rules also apply to adults 19 years of age or older, but younger than 65 years of age, who became eligible for coverage under the eligibility expansion that was authorized by the 2018 General Assembly.

Summary of the Proposed Amendments to Regulation. The Director of the Department of Medical Assistance Services (DMAS) proposes to clarify that existing Medicaid hospital presumptive eligibility rules also apply to adults 19 years of age or older, but younger than 65 years of age, who became eligible for coverage under the eligibility expansion that was authorized by the 2018 General Assembly.

Background. Starting on January 1, 2019, Virginia expanded Medicaid eligibility to adults 19 years of age or older, but younger than 65 years of age, with household incomes below 138 percent of the federal poverty level. Both the 2018 and 2019 Appropriation Acts (Item 303.SS 4a) authorized DMAS to effectuate changes needed to implement the expansion. Likewise, both Appropriation Acts (Item 303.SS 4f) allowed DMAS to promulgate emergency regulations to implement the expansion related changes which became effective on October 15, 2019.¹ As of October 18, 2019, over 331,000 individuals had enrolled in the expanded category.

Federal regulations in 42 CFR 435.1101 and 1102 outline the details regarding the implementation of hospital presumptive eligibility rules by the states, and note that Medicaid recipients are presumed eligible for hospital services subject to certain conditions. However, this regulation which was adopted to comply with the federal hospital presumptive eligibility rules currently do not include the expanded eligibility category as one of the groups that are subject to hospital presumptive eligibility. The changes proposed by DMAS would permanently add the eligibility category of adults 19 years of age or older, but younger than 65 years of age, with household incomes below 138% of the federal poverty level to the groups that are subject to hospital presumptive eligibility rules.

Under the presumptive eligibility rules previously adopted by Virginia Medicaid, eligibility determinations are made by trained hospital staff based on an assessment of the individual's status as a member of a group (i.e. pregnant women, infants and children under age 19, parents and other caretaker relatives, individuals eligible for family planning services, former foster care children, individuals needing treatment for breast and cervical cancer), their income, state residency, and citizenship status.

The hospital then assists the individual in completing and submitting a full Medicaid application for future Medicaid coverage. If the individual is found presumptively eligible, he or she is temporarily enrolled in Medicaid and health care providers receive payment for services provided during this interim period. A full application for Medicaid coverage may follow, with the determination of eligibility completed by a local department of social services, or DMAS. The presumptive eligibility begins on the date the determination is made and ends on the earlier of the day on which a decision is made on a full Medicaid application, or the last day of the month following the month that the hospital's presumptive eligibility determination was made and no full Medicaid application was filed. Payment for services covered is guaranteed during the presumptive eligibility period. There is no recoupment for Medicaid services provided during that period resulting from erroneous determinations made by qualified entities.

Estimated Benefits and Costs. The primary advantages that would result from this regulatory action are that it would: enable DMAS to comply with federal requirements; assure individuals in the expanded category timely access to care; promote Medicaid enrollment among individuals who are eligible for Medicaid but not enrolled; and permit hospitals to receive Medicaid reimbursement for covered services rendered. However, it should be noted that these effects are the result of the enabling legislation and cannot be directly attributed to the proposed regulatory language by themselves.

Also, the proposed changes have already been implemented effective October 15, 2019 under emergency regulations pursuant to 2018 and 2019 General Assembly mandates. Thus, the proposed changes are not expected to create any new economic impact following promulgation of these permanent rules, other than clarifying the regulatory text regarding the applicability of existing hospital presumptive eligibility rules to the expansion population.

Businesses and Other Entities Affected. There are 169 hospitals in Virginia enrolled in Medicaid and 63 of them are conducting presumptive eligibility determinations. In 2020, there were 2,338 individuals who enrolled through hospital presumptive eligibility rules in the expanded category. As noted above, the proposed amendments mandated by the legislation are beneficial for both hospitals and recipients as they allow recipients to receive Medicaid services and providers to receive reimbursement for covered services rendered, but these amendments are not directly responsible for such impacts. Also, the proposed changes are not expected to create any economic effect upon promulgation of these permanent rules other than providing clarification for the regulatory text. Thus, no adverse economic impact² on any entity is indicated.

Small Businesses³ Affected:

According to DMAS, none of the 169 hospitals that are subject to the hospital presumptive eligibility rules are small businesses. Thus, the proposed amendments do not affect small businesses.

Localities⁴ Affected.⁵ The proposed amendments do not introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not directly affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not directly affect the use and value of private property nor real estate development costs.

__________________

¹https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8501

²Adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined.

³Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁴"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁵§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

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

Summary:

The amendments add a new adult coverage group to hospital presumptive eligibility, incorporating changes made to the Virginia State Plan in order to implement Medicaid Expansion.

12VAC30-30-70. Hospital presumptive eligibility.

A. Qualified hospitals shall administer presumptive eligibility in accordance with the provisions of this section. A qualified hospital is a hospital that meets the requirements of 42 CFR 435.1110(b) and that:

1. Has entered into a valid provider agreement with DMAS the Department of Medical Assistance Services (DMAS), participates as a Virginia Medicaid provider, notifies DMAS of its election to make presumptive eligibility determinations, and agrees to make presumptive eligibility determinations consistent with DMAS policies and procedures; and

2. Has not been disqualified by DMAS for failure to make presumptive eligibility determinations in accordance with applicable state policies and procedures as defined in subsections C, D, and E of this section or for failure to meet any standards established by the Medicaid agency.

B. The eligibility groups or populations for which hospitals determine eligibility presumptively are: (i) pregnant women; (ii) infants and children younger than age 19 years; (iii) parents and other caretaker relatives; (iv) individuals eligible for family planning services; (v) former foster care children; and (vi) individuals needing treatment for breast and cervical cancer; and (vii) adults 19 years of age or older but younger than 65 years of age.

C. The presumptive eligibility determination shall be based on:

1. The individual's categorical or nonfinancial eligibility for the group, as listed in subsection B of this section, for which the individual's presumptive eligibility is being determined;

2. Household income shall not exceed the applicable income standard for the group, as the groups are listed in subsection B of this section, for which the individual's presumptive eligibility is being determined if an income standard is applicable for this group;

3. Virginia residency; and

4. Satisfactory immigration status in accordance with 42 CFR 435.1102(d)(1) and as required in subdivision 3 of 12VAC30-40-10 and 42 CFR 435.406.

D. Qualified hospitals shall ensure that at least 85% of individuals deemed by the hospital to be presumptively eligible will file a full Medicaid application before the end of the presumptive eligibility period.

E. Qualified hospitals shall ensure that at least 70% of individuals deemed by the hospital to be presumptively eligible are determined eligible for Medicaid based on the full application that is submitted before the end of the presumptive eligibility period.

F. The presumptive eligibility period is determined in accordance with 42 CFR 435.1101 and shall begin on the date the presumptive eligibility determination is made. The presumptive eligibility period shall end on the earlier of:

1. The date the eligibility determination for regular Medicaid is made if an application for Medicaid is filed by the last day of the month following the month in which the determination of presumptive eligibility is made; or

2. The last day of the month following the month in which the determination of presumptive eligibility is made if no application for Medicaid is filed by last day of the month following the month in which the determination of presumptive eligibility is made.

G. Periods of presumptive eligibility are limited to one presumptive eligibility period per pregnancy and one per calendar year for all other covered groups.