Title of Regulation: 3VAC5-70. Other Provisions (amending 3VAC5-70-200).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Effective Date: July 12, 2017.

Agency Contact: LaTonya D. Hucks, Legal Liaison, Department of Alcoholic Beverage Control, 2901 Hermitage Road, Richmond, VA 23220, telephone (804) 213-4569, FAX (804) 213-4574, or email latonya.hucks@abc.virginia.gov.

Summary:

Pursuant to Chapter 155 of the 2017 Acts of Assembly, the amendments authorize a permittee to purchase grain alcohol with a proof greater than 151 at government stores from July 1, 2017, through June 30, 2022.

3VAC5-70-200. Grain alcohol; permits; qualifications; records; refusal, suspension, or revocation.

A. The board may issue a yearly permit authorizing the permittee to purchase grain alcohol with a proof greater than 101 at government stores for any of the following purposes:

1. Industrial use;

2. Commercial use;

3. Culinary use; or

4. Medical use.

During the period July 1, 2017, through June 30, 2022, the board may issue a yearly permit authorizing the permittee to purchase grain alcohol with a proof greater than 151 at government stores for any of the purposes listed in this subsection.

B. The application for such permits shall be on forms provided by the board.

B. C. Permits may be issued to legitimate businesses for any one or more of the purposes stated in subsection A of this section upon presentation of satisfactory evidence of the conduct of the business activity involved. For good cause shown, the board may issue a permit to an individual for any of the uses stated in subsection A of this section.

C. D. A person obtaining a permit shall maintain complete and accurate records of all purchases for a period of two years, and the. The board and its special agents shall have free access during reasonable hours to all records required to be kept pursuant to this section.

D. E. The board may refuse to issue, suspend, or revoke the a permit if it shall have the board has reasonable cause to believe that (i) the permittee would use, has used, or allowed to be used grain alcohol for any unlawful purpose, or that (ii) any cause exists under § 4.1-222 of the Code of Virginia for which the board may refuse to grant the applicant any license or has done any act for which the board might suspend or revoke a license under § 4.1-225 of the Code of Virginia.

Title of Regulation: 4VAC20-720. Pertaining to Restrictions on Oyster Harvest (amending 4VAC20-720-15).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: May 24, 2017.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments remove the April 30, 2017, deadline for paying the oyster resource user fee and provide that the fee shall be paid yearly in order to maintain eligibility to harvest oysters from public ground in that year.

4VAC20-720-15. Control date, license moratorium, transferability, and agents.

A. The commission hereby establishes July 1, 2014, as the control date for management of all public oyster fisheries in Virginia. Participation by any individual in any public oyster fishery after the control date may not be considered in the calculation or distribution of oyster fishing rights should entry limitations be established. Any individual entering the public oyster fishery after the control date will forfeit any right to future participation in the public oyster fishery should further entry limitations be established by the commission.

B. Beginning February 23, 2016, only Only individuals who have paid the oyster resource user fee described in clause (ii) of subsection A of § 28.2-541 of the Code of Virginia in previous years any year from 2013 through 2016 may pay that fee for the current year in 2017 for harvest of oysters from public ground in that year. Those individuals who are eligible to pay the oyster resource user fee described in clause (ii) of subsection A of § 28.2-541 of the Code of Virginia shall do so by April 30, 2017, in 2017 and by January 1 in subsequent years in order to maintain their eligibility. In any year following 2017, eligibility to pay the oyster resource user fee described in clause (ii) of subsection A of § 28.2-541 of the Code of Virginia shall be limited to those individuals who paid the oyster resource user fee for harvest of oysters from public ground in the previous year.

C. Should the number of people eligible to pay the oyster resource user fee described in clause (ii) of subsection A of § 28.2-541 of the Code of Virginia in any given year fall below 600, a random drawing shall be held to award eligibility to pay that oyster resource user fee to individuals who were not previously eligible until the number of persons eligible to pay the fee reaches 600. Any Commercial Fisherman Registration Licensee may apply for the random drawing.

D. Any person eligible to pay the oyster resource user fee described in clause (ii) of subsection A of § 28.2-541 of the Code of Virginia, or such person's legal representative, may transfer the eligibility to pay such user fee to:

1. A transferee who is the transferor's spouse, sibling, parent, child, grandparent, or grandchild and who possesses a current Commercial Fisherman Registration License and intends to participate in the public oyster fishery.

2. A transferee other than a person described in subdivision 1 of this subsection if the transferor has documented by mandatory reporting and buyers reports 40 days or more of public oyster harvest during the previous calendar year.

All transfers under this subsection shall be documented on a form provided by the Marine Resources Commission.

E. Exceptions to subsection B of this section shall only apply to those individuals who previously paid the oyster resource user fee described in clause (ii) of subsection A of § 28.2-541 of the Code of Virginia and shall be based on documented medical hardships or active military leave that prevented the fisherman from fully satisfying the requirements of subsection B of this section.

F. No person shall serve as an agent for any public oyster gear licensee.

Title of Regulation: 4VAC20-910. Pertaining to Scup (Porgy) (amending 4VAC20-910-45).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: May 24, 2017.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendment changes the commercial harvest and landing quota of scup for May 1 through October 31 from 13,154 pounds to 11,812 pounds.

4VAC20-910-45. Possession limits and harvest quotas.

A. During the period January 1 through April 30 of each year, it shall be unlawful for any person to do any of the following:

1. Possess aboard any vessel in Virginia more than 50,000 pounds of scup.

2. Land in Virginia more than a total of 50,000 pounds of scup during each consecutive seven-day landing period, with the first seven-day period beginning on January 1.

B. When it is projected and announced that 80% of the coastwide quota for this period has been attained, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than a total of 1,000 pounds of scup.

C. During the period November 1 through December 31 of each year, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than 18,000 pounds of scup.

D. During the period May 1 through October 31 of each year, the commercial harvest and landing of scup in Virginia shall be limited to 13,154 11,812 pounds.

E. For each of the time periods set forth in this section, the Marine Resources Commission will give timely notice to the industry of calculated poundage possession limits and quotas and any adjustments thereto. It shall be unlawful for any person to possess or to land any scup for commercial purposes after any winter period coastwide quota or summer period Virginia quota has been attained and announced as such.

F. It shall be unlawful for any buyer of seafood to receive any scup after any commercial harvest or landing quota has been attained and announced as such.

G. It shall be unlawful for any person fishing with hook and line, rod and reel, spear, gig, or other recreational gear to possess more than 30 scup. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by 30. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any scup taken after the possession limit has been reached shall be returned to the water immediately.

Title of Regulation: 4VAC20-950. Pertaining to Black Sea Bass (amending 4VAC20-950-10, 4VAC20-950-30, 4VAC20-950-47, 4VAC20-950-48, 4VAC20-950-49).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: June 1, 2017.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments include (i) increasing the black sea bass directed quota to 784,080 pounds, (ii) removing the hardship exception quotas provision, and (iii) adding "vessel" when referring to an alternate landing.

4VAC20-950-10. Purpose.

The purposes of this chapter are to (i) reduce fishing mortality in the black sea bass fishery to ensure that overfishing does not occur, (ii) increase promote the health of the spawning stock biomass, (iii) improve the yield from the fishery, (iv) distribute shares of the black sea bass quota to those fishermen who demonstrate a previous history of participation in the fishery, and (v) encourage safe black sea bass aquaculture practices.

4VAC20-950-30. Minimum size limit.

A. The minimum size for black sea bass harvested by commercial fishing gear shall be 11 inches, total length. It shall be unlawful for any person to sell, trade, or barter, or offer to sell, trade, or barter any black sea bass less than 11 inches, total length, except as described in 4VAC20-950-70.

B. The minimum size of black sea bass harvested by recreational gear, including but not limited to hook and line, rod and reel, spear and gig, shall be 12-1/2 inches, total length.

C. It shall be unlawful for any person to possess any black sea bass smaller than the minimum size limit, as designated respectively, in subsections A and B of this section, except as described in 4VAC20-950-70.

D. It shall be unlawful for any person to sell, trade, or barter, or offer to sell, trade, or barter any black sea bass less than 11 inches, total length, except as described in 4VAC20-950-70.

E. D. Total length shall be measured along the lateral midline from tip of nose to tip of tail excluding the caudal fin filament.

4VAC20-950-47. Commercial harvest quotas.

A. The annual commercial black sea bass directed fishery quota is 502,000 784,080 pounds. When it has been announced that the directed fishery quota has been projected as reached and the directed fishery has been closed, it shall be unlawful for any directed commercial black sea bass fishery permittee to possess aboard any vessel or land in Virginia any black sea bass.

B. The annual commercial black sea bass bycatch fishery quota is 40,000 pounds. When it has been announced that the bycatch fishery quota has been projected as reached and the bycatch fishery has been closed, it shall be unlawful for any bycatch commercial black sea bass fishery permittee to possess aboard any vessel or land in Virginia any black sea bass. In the event the bycatch fishery quota is exceeded, the amount of the quota overage shall be deducted from the following year's bycatch fishing quota.

4VAC20-950-48. Individual fishery quotas; bycatch limit; at sea harvesters; exceptions.

A. Each person possessing a directed fishery permit shall be assigned an individual fishery quota, in pounds, for each calendar year. A person's individual fishery quota shall be equal to that person's percentage of the total landings of black sea bass in Virginia from July 1, 1997, through December 31, 2001, multiplied by the directed commercial fishery black sea bass quota for the calendar year. Any directed fishery permittee shall be limited to landings in Virginia in the amount of his individual fishery quota, in pounds, in any calendar year and it shall be unlawful for any permittee to exceed his individual fishery quota. In addition to the penalties prescribed by law, any overages of an individual's fishery quota shall be deducted from that permittee's individual fishery quota for the following year.

B. In the determination of a person's percentage of total landings, the commission shall use the greater amount of landings from either the National Marine Fisheries Service Dealer Weigh-Out Reports or National Marine Fisheries Service Vessel Trip Reports that have been reported and filed as of November 26, 2002. If a person's percentage of the total landings of black sea bass is determined by using the Vessel Trip Reports as the greater amount, then the person shall provide documentation to the Marine Resources Commission to verify the Vessel Trip Reports as accurate. This documentation may include dealer receipts of sales or other pertinent documentation, and such documentation shall be submitted to the commission by December 1, 2004. In the event the commission is not able to verify the full amount of the person's Vessel Trip Reports for the qualifying period, the commission shall use the greater amount of landings, from either the Dealer Weigh-Out Reports or the verified portion of the Vessel Trip Reports to establish that person's share of the quota.

C. It shall be unlawful for any person harvesting black sea bass to possess aboard any vessel in Virginia waters any amount of black sea bass that exceeds the combined total of any portion of the Virginia permitted landing limit, as described in subsection A of this section, and the North Carolina legal landing limit.

D. It shall be unlawful for any person permitted for the bycatch fishery to do any of the following:

1. Possess aboard a vessel or land in Virginia more than 200 pounds of black sea bass in addition to the North Carolina legal landing limit or trip limit, in any one day, except as provided in subdivision 2 of this subsection;

2. Possess aboard a vessel or land in Virginia more than 1,000 pounds of black sea bass in addition to the North Carolina legal landing limit or trip limit, in any one day, provided that the total weight of black sea bass on board the vessel does not exceed 10%, by weight, of the total weight of summer flounder, scup, Longfin squid, and Atlantic mackerel on board the vessel; or

3. Possess aboard a vessel or land in Virginia more than 100 pounds of black sea bass in addition to the North Carolina legal landing limit or trip limit, when it is projected and announced that 75% of the bycatch fishery quota has been taken.

E. It shall be unlawful for any person to transfer black sea bass from one vessel to another while at sea.

F. Any hardship exception quota granted by the commission prior to October 27, 2009, shall be converted to a percentage of the directed fishery quota based on the year in which that hardship exception quota was originally granted. The hardship exception quota shall not be transferred for a period of five years from the date the commission granted that hardship exception quota.

G. F. An individual fishery quota, as described in subsection A of this section, shall be equal to an individual's current percentage share of the directed fishery quota, as described in 4VAC20-950-47 A.

4VAC20-950-49. Reporting requirements.

A. It shall be unlawful for any person permitted for the directed fishery, the bycatch fishery, or for an authorized alternate landing vessel to fail to contact, within one hour of landing, the Marine Resources Commission's Law Enforcement Operations Division to report his name and the name of the vessel, his permit number, the location where catch will be offloaded, and the estimated weight of the landing of black sea bass.

B. It shall be unlawful for any person permitted for the directed fishery, the bycatch fishery, or for an authorized alternate landing vessel to fail to contact, within 24 hours of landing, the Marine Resources Commission's Interactive Voice Recording System to report the name of the permit holder and the name of the vessel that landed the black sea bass, date of landing, the permit number and the weight of black sea bass landed.

C. Any buyer of black sea bass from a directed fishery permittee, a bycatch fishery permittee, or an authorized alternate landing vessel shall maintain records of all purchases for the current year and prior year and make those records available to the Marine Resources Commission upon request.

Title of Regulation: 4VAC25-160. Virginia Gas and Oil Board Regulations (amending 4VAC25-160-30, 4VAC25-160-40, 4VAC25-160-110).

Statutory Authority: § 45.1-361.15 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 12, 2017.

Effective Date: July 27, 2017.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email mike.skiffington@dmme.virginia.gov.

Basis: The Department of Mines, Minerals and Energy has the authority to promulgate regulations generally under § 45.1-161.3 of the Code of Virginia. The Virginia Gas and Oil Board has the authority to promulgate this regulation under § 45.1-361.15 of the Code of Virginia. The board is not mandated to promulgate this regulation, but it is necessary to ensure the board can meet its mandated authority to promote the safe and efficient exploration for and development, production, and utilization of gas and oil resources and protect the correlative rights of resource owners.

Purpose: The purpose of this regulatory action is to require electronic submissions and filings, eliminating unnecessary paper submissions, to remove unnecessary requirements, and to clarify ambiguous language throughout the regulation. As business practices continue to evolve with technology, it is important to ensure that the necessary regulation is as up to date as possible. These clarifying amendments will have no direct effect on public health, safety, or welfare.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial as it does not represent a substantive change to the regulation. The amendments are intended to clarify language, remove unnecessary requirements, and enhance the efficiency of notifications, submissions, and filings.

Substance: The amendments will ensure the language of the regulation reflects current business practices for the department and the board. The amendments specifically provide for electronic submission of information, alternative methods for notifying property owners, more efficient public notice requirements, and clarifying language for providing evidence of record transfer between new and previous unit owners.

Issues: The primary advantage to the public and regulated entities will be a clearer, more updated regulation, which reflects current business practices and regulatory needs. The primary advantage of this action to the Commonwealth is increased efficiency and clarity that result from these largely technical amendments. There are no disadvantages to the public or the Commonwealth.

Small Business Impact Review Report of Findings: This regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the result of a 2016 periodic review,¹ the Virginia Gas and Oil Board (Board) proposes to: 1) specify that documents submitted to the Board or the Department of Mines, Minerals and Energy (DMME) be sent electronically rather than as paper copies, 2) allow for additional methods of communication when certain notifications are required to be sent to other resource owners, 3) allow for when the location of a prospective gas or oil well is required to be published in a newspaper that the notice can include either a map or a description of the location, and no longer would need both, and 4) amend other language for improved clarity.

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

Estimated Economic Impact. The Virginia Gas and Oil Board Regulations govern gas and oil operations in the Commonwealth.

The current regulation requires paper copies of certain information including exhibits in support of applications be sent to DMME. The Board proposes to amend the language to specify that the submissions be done electronically. In practice, firms regulated by the Board have submitted such documents electronically. Thus, this proposed amendment will have no impact beyond clarifying what actually occurs in practice.

The current regulation specifies that each applicant for a hearing to establish an exception to statewide spacing of oil and gas wells is to:

provide notice by certified mail, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying any tract located within the distances provided in § 45.1-361.17 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less.

The Board proposes to allow additional options, beyond certified mail, for the notification. Specifically, the Board proposes to also allow the notice be by another commercial carrier including but not limited to FedEx and UPS, return receipt requested, and electronic mail. The proposal to allow these alternate methods may moderately reduce costs for notifications, while still proving for proper notification. Thus the proposal likely would produce a net benefit.

When the identity or location of any person to whom notice is required to be given is unknown, the applicant (for the hearing to establish an exception to statewide spacing) is required to publish in a newspaper of general circulation in the locality where the land which is the subject of the application is located. Under the current regulation the notice must include a map showing the general location of the area that would be affected by the proposed action and a description that clearly describes the location or boundaries of the area that would be affected by the proposed action sufficient to enable local residents to identify the area. The Board proposes to amend the requirement to be that the notice published in a newspaper must include either a map or a description of the location but need not be both, as under the current regulation. This proposal would likely save applicants a moderate amount of cost in payment to a newspaper, while presumably still providing enough information for the location of the proposed well to be reasonably identifiable. Thus, this proposal will likely produce a net benefit.

Businesses and Entities Affected. The proposed amendments potentially affect the 20 natural gas operators and approximately 200 contractors and subcontractors. DMME believes that the majority of the contractors and subcontractors would meet the definition of a small business.

Localities Particularly Affected. The proposed amendments do not particularly affect specific localities.

Projected Impact on Employment. The proposed amendments would not affect employment.

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

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

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. The proposals to allow for additional methods of communication when certain notifications are required to be sent to other resource owners and to allow the required newspaper notifications to include either a map or a description of the location may moderately reduce costs for some small firms.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

______________________________

¹ More information about the 2016 periodic review can be found on the Virginia Regulatory Town Hall at http://townhall.virginia.gov/L/ViewPReview.cfm?PRid=1539

Agency's Response to Economic Impact Analysis: The Department of Mines, Minerals and Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendments (i) specify that documents submitted to the Virginia Gas and Oil Board or the Department of Mines, Minerals and Energy be sent electronically rather than as paper copies; (ii) allow for additional methods of communication when certain notifications are required to be sent to other resource owners; (iii) provide that when the location of a prospective gas or oil well is required to be published in a newspaper the notice can include either a map or a description of the location, no longer requiring both; and (iv) clarify an affidavit must be submitted to the board to release a previous unit operator from responsibility as the unit operator.

4VAC25-160-30. Administrative provisions.

A. The Virginia Gas and Oil Board shall meet on the third Tuesday of each calendar month unless no action is required by the board or unless otherwise scheduled by the board. All hearings shall be scheduled in accordance with the requirements for notice by publication in § 45.1-361.19 of the Code of Virginia. Except where otherwise established by the Act, the board may establish deadlines for filing materials for meetings or hearings scheduled on other than the third Tuesday of each month. Except where otherwise established by the Act, filings shall be in electronic form or a format prescribed by the board.

B. Applications to the board must be filed by the following deadlines:

1. All applications, petitions, appeals or other requests for board action must be received by the division at least 30 calendar days prior to the regularly scheduled meeting of the board. If the 30th day falls on a weekend or a legal holiday, the deadline shall be the prior business day.

2. When required, two copies of the following material must be filed with the division at least seven calendar days prior to the regularly scheduled meeting of the board in order for the application to be considered a complete application:

a. The affidavit demonstrating that due diligence was used to locate and serve persons in accordance with § 45.1-361.19 of the Code of Virginia and 4VAC25-160-40; and

b. Proof of notice by publication in accordance with 4VAC25-160-40 D.

C. A complete application that is not filed by the deadlines of this subsection shall be carried over to the next scheduled meeting of the board. A submission that does not contain a complete application shall not be considered by the board until the application is complete.

D. The division shall assign a docket number to each application or petition at the time of payment receipt and filing. The division shall notify the applicant of the completed filing and assigned docket number. The docket number shall be referenced when submitting material regarding the application or petition.

E. In addition to the other requirements of this chapter, applications to the board shall meet the following standards:

1. Each application for a hearing before the board shall be headed by a caption, which shall contain a heading including:

a. "Before the Virginia Gas and Oil Board";

b. The name of the applicant;

c. The relief sought; and

d. The docket number assigned by the division.

2. Each application shall be signed by the applicant, an authorized agent of the applicant, or an attorney for the applicant, certifying that, "The foregoing application to the best of my knowledge, information, and belief is true and correct."

3. Exhibits shall be identified by the docket number and an exhibit number and may be introduced as part of a person's presentation.

4. Applicants shall submit eight sets a copy of each application and exhibits. Each person offering exhibits into evidence shall also have available a reasonably sufficient number of exhibits for other persons who are subject to the provisions of §§ 45.1-361.19 and 45.1-361.23 of the Code of Virginia, who have notified the division of their request for copies of exhibits, and are expected to be in attendance at the hearing.

F. Applications for the establishment and modification of a unit, spacing or pooling shall be accompanied by a $130 nonrefundable fee, payable to the Treasurer of Virginia.

G. All parties in any proceeding before the board are entitled to appear in person or be represented by counsel, as provided for in the Administrative Process Act, § 2.2-4000 et seq. of the Code of Virginia.

4VAC25-160-40. Notice of hearings.

A. Each applicant for a hearing to establish an exception to statewide spacing under § 45.1-361.17 of the Code of Virginia shall provide notice by electronic mail, by certified mail, return receipt requested, or by another commercial carrier including Federal Express and United Parcel Service, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying any tract located within the distances provided in § 45.1-361.17 of the Code of Virginia or the distance to the nearest well completed in the same pool, whichever is less. Each applicant for a hearing to establish an exception to a well location provided for in a drilling unit established by an order of the board shall provide notice by certified mail, return receipt requested, to all gas, oil, coal or mineral owners having an interest underlying the unit where the exception is requested.

B. Each applicant shall include, in or with the mailed notice of the hearing required under § 45.1-361.19 of the Code of Virginia, the following information:

1. The name and address of the applicant and the applicant's counsel, if any;

2. In the case of an application to vacate or amend an order, identification of the order to be vacated or amended;

3. A statement of the relief sought and proposed provisions of the order or proposed order;

4. Citations of statutes, rules, orders and decided cases supporting the relief sought;

5. A statement of the type of well or wells (gas, oil or coalbed methane gas);

6. a. For a pooling order, the notice should include: a plat showing the size and shape of the proposed unit and boundaries of tracts within the unit. The location of the proposed unit shall be shown in accordance with the Virginia Coordinate System of 1983, as defined in Chapter 17 (§ 55-287 et seq.) of Title 55 of the Code of Virginia, also known as the State Plane Coordinate System. The plat shall include property lines taken from (i) deed descriptions and chain of title, (ii) county courthouse records, or (iii) a physical survey for each land track in the unit. The location of the well and the percentage of acreage in each tract in the unit shall be certified by a licensed land surveyor or a licensed professional engineer and attested by the applicant as to its conformity to existing orders issued by the board;

b. For a field rule, the notice should include: a description of the pool or pools in the field, the boundaries of the field, information on the acreage and boundaries of the units proposed to be in the field and any proposed allowable production rates; or

c. For a location exception, the notice should include: a description of the proposed well location in relation to other wells within statewide spacing limits or in relation to the allowable area for drilling within a unit;

7. A description of the interest or claim of the respondent being notified;

8. A description of the formation or formations to be produced;

9. An estimate of the amount of reserves of the unit;

10. An estimate of the allowable costs in accordance with 4VAC25-160-100; and

11. How interested persons may obtain additional information or a complete copy of the application.

C. When after a diligent search the identity or location of any person to whom notice is required to be given in accordance with subsection A or B of this section is unknown at the time the applicant applies for a hearing before the board, the applicant for the hearing shall cause a notice to be published in a newspaper of general circulation in the county, counties, city, or cities where the land or the major portion thereof which is the subject of the application is located. The notice shall include:

1. The name and address of the applicant;

2. A description of the action to be considered by the board;

3. A map showing the general location of the area that would be affected by the proposed action and or a description that clearly describes the location or boundaries of the area that would be affected by the proposed action sufficient to enable local residents to identify the area;

4. The date, time and location of the hearing at which the application is scheduled to be heard; and

5. How interested persons may obtain additional information or a complete copy of the application.

D. Notice of a hearing made in accordance with § 45.1-361.19 of the Code of Virginia or this section shall be sufficient, and no additional notice is required to be made by the applicant upon a postponement or continuance of the hearing.

E. Each applicant for a hearing to modify an order established under § 45.1-361.21 or § 45.1-361.22 of the Code of Virginia shall provide notice in accordance with § 45.1-361.19 of the Code of Virginia to each person having an interest underlying the tract or tracts to be affected by the proposed modification.

F. An applicant filing a petition to modify a forced pooling order established under § 45.1-361.21 or § 45.1-361.22 of the Code of Virginia to change the unit operator based on a change in the corporate name of the unit operator; a change in the corporate structure of the unit operator; or a transfer of the unit operator's interests to any single subsidiary, parent or successor by merger or consolidation is not required to provide notice. Other applicants for a hearing to modify a forced pooling order shall provide notice in accordance with § 45.1-361.19 of the Code of Virginia to each respondent named in the order to be modified whose interest may be affected by the proposed modification.

4VAC25-160-110. Recordkeeping.

A. Each unit operator shall maintain records of production, income, payments made to lessors and escrow agents, any suspended payments, and other information prescribed by the board until the later of:

1. When the permits for all wells in the unit have been released by the department;

2. Twenty-four months after all escrowed funds for competing claims to ownership of coalbed methane gas in the unit have been paid out under order of the board; or

3. When so ordered by the board.

B. Each unit operator shall maintain itemized records of all costs charged to participating or nonparticipating operators until the later of:

1. Twenty-four months after all costs attributable to participating or nonparticipating operators have been settled and paid; or

2. When so ordered by the board.

C. Upon transfer of the right to conduct operations in a pooled drilling unit to a new unit operator, the old unit operator shall transfer all records required to be maintained in accordance with this section to the new unit operator. The old unit operator will not be released from responsibility as the unit operator until he has submitted, to the board, evidence an affidavit that the records have been received by the new unit operator.

D. In the event a unit operator wishes to terminate its legal existence and the unit is not transferred to a new unit operator, or when the permit for any well in the unit has been revoked and the bond forfeited by the department, the unit operator shall transfer, to the board, all records required to be maintained in accordance with this section.

Title of Regulation: 4VAC25-170. Geothermal Energy Regulations (amending 4VAC25-170-10, 4VAC25-170-30 through 4VAC25-170-80).

Statutory Authority: § 45.1-179.7 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 12, 2017.

Effective Date: July 27, 2017.

Agency Contact: Michael Skiffington, Regulatory Coordinator, Department of Mines, Minerals and Energy, 1100 Bank Street, 8th Floor, Richmond, VA 23219-3402, telephone (804) 692-3212, FAX (804) 692-3237, TTY (800) 828-1120, or email mike.skiffington@dmme.virginia.gov.

Basis: The Department of Mines, Minerals and Energy has the authority to promulgate this regulation under §§ 45.1-161.3 and 45.1-179.6 of the Code of Virginia. Section 45.1-161.3 provides the authority to promulgate regulations necessary or incidental to the performance of duties or execution of powers conferred under Title 45.1 of the Code of Virginia and other relevant chapters, which regulations shall be promulgated by the department, the chief, or the director, as appropriate, in accordance with the provisions of Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of the Administrative Process Act. Section 45.1-179.6 authorizes the department to make and enforce rules, regulations, and orders and do whatever may reasonably be necessary to carry out the provisions of Chapter 15.1 (§ 45.1-179.1 et seq.) of Title 45.1 of the Code of Virginia.

Purpose: The purpose of this action is to ensure that the department's Geothermal Energy Regulations are up to date, consistent with existing law, and easy to understand. The minor amendments to the regulation accomplish these goals. These clarifying amendments will have no direct effect on public health, safety, or welfare.

Rationale for Using Fast-Track Rulemaking Process: The department is using the fast-track rulemaking process because this rulemaking is noncontroversial. The proposed changes bring this regulation in line with the Virginia Gas and Oil Act (§ 45.1-361.1 et seq. of the Code of Virginia) and attendant regulations, as well as allowing for permit applications to be filed electronically. Other amendments are made for clarity.

Substance: Bonding requirements are amended to clarify and match requirements in § 45.1-361.31 of the Virginia Gas and Oil Act. Requirements are also amended to match existing fee structure for gas and oil wells resulting in a fee increase; however, the department has not received any permit applications for geothermal energy. The regulations are also amended to require electronic submissions to the department to reflect Division of Gas and Oil's electronic permitting system and current business practices. Language was amended for clarity, the removal of unnecessary or redundant regulations, and to align with existing Gas and Oil regulations.

Issues: The primary advantage to this action to the Commonwealth is increased efficiency and clarity that result from these largely technical amendments. There is no impact on or advantage to the public. There are no disadvantages to the public or the Commonwealth.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As the result of a periodic review,¹ the Department of Mines, Minerals and Energy (DMME) proposes to: 1) raise the geothermal exploration, production, and injection well permit application fee from $75 to $600, 2) allow professional engineers to do work that currently only registered surveyors may do, 3) increase the required lengths for cement plugs of wells, 4) require that the permanent sign marking the location of each abandoned well include the date the well was plugged, 5) give owners and operators additional time to submit documents and notifications, 6) require that all documents and notifications be submitted electronically, and 7) amend other language for improved clarity. There is no geothermal energy development in the Commonwealth currently.²

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

Estimated Economic Impact

Background

Unlike most energy sources that require heat to be manufactured by humans, geothermal energy utilizes the natural heat of the earth and its tectonic processes. In order to access this energy, wells are drilled into areas below the earth's crust where there are aquifers of already heated water, or steam. As pressure increases deeper into the earth, water is unable to turn into steam as it is heated because there is so much pressure. As a result, 'superheated water' is produced at very deep depths of the earth. As wells are drilled into the rock that houses this water, its steam is converted into mechanical energy for utilization.³

The utilization of energy from geothermal wells releases greenhouse gases trapped in the earth core such as carbon dioxide, hydrogen sulfide, methane, and ammonia.⁴ These emissions are lower than those associated with the use of fossil fuels, for which the adoption of geothermal energy sources is considered to have the potential to mitigate global warming and have a favorable impact on the environment.⁵ An analysis by the Argonne National Laboratory concluded that geothermal waters pose a large potential risk to water quality, if released into the environment, due to high concentrations of toxics including antimony, arsenic, lead, and mercury, but that the risk of release can be virtually eliminated through proper design and engineering controls.⁶

Application Fee

DMME proposes to raise the geothermal well permit application fee (currently $75) to match the $600 fee charged for oil and gas well permit applications. Unlike for oil and gas, the agency has never received a permit application for geothermal energy. Thus the cost in terms of staff time of processing a geothermal energy well permit application, as well as regulating the industry for environmental protection, would likely be equal or greater per permit processed than for oil and gas staff. Raising the geothermal fee to match oil and gas well permit application fee would better reflect the cost incurred.  

There is the possibility that the higher fee might discourage the pursuit of some geothermal energy drilling for some potentially marginally profitable wells; but given the overall cost (at least tens of thousands of dollars) of drilling, the higher fee would not likely be the deciding factor in most cases. Additionally, the benefit of helping ensure adequate protection of the water supply and air quality through paying for DMME staff to check that proper procedures and designs are followed likely exceeds the cost.

Surveying and Plat Certification

Under the current regulation, the location of production and injection wells must be surveyed and the plat certified by a registered surveyor. DMME proposes to allow professional engineers (PEs) to do this work as well. PEs are allowed to do such work for gas and oil permit applications under the Virginia Gas and Oil Board Regulations. Allowing PEs to do this work may be beneficial in that it expands the pool of qualified people who may be available. This could perhaps save time and cost for a firm seeking to extract geothermal energy.

Cement Plug Lengths

The regulation requires that any drilling well completed as a dry hole from which the rig is to be removed be cemented. This is for environmental protection. As described in the Background section of this document, geothermal waters pose a large potential risk to water quality, if released into the environment, due to high concentrations of toxics including antimony, arsenic, lead, and mercury. The cement plugs help prevent this contamination from occurring from wells that are no longer in use.

Under the current regulation, a cement plug not less than 50 feet in length must be placed immediately above each producing formation; and a plug not less than 20 feet in length must be placed at or near the surface of the ground in each hole. DMME proposes to require that both plug lengths be 100 feet in order to reduce the risk of pollutants entering the water supply. The agency estimates that the additional cost per plug of the longer required lengths would be less than $200 per plug. To the extent that the longer required plugs would significantly improve environmental protection, then the benefits likely exceed the costs of this proposal.

Abandoned Well Signage

The exact location of each abandoned well must be marked by a piece of pipe not less than four inches in diameter securely set in concrete and extending at least four feet above the general ground level. A permanent sign of durable construction must be welded or otherwise permanently attached to the pipe, and shall contain the well identification information. DMME proposes to require that the permanent sign specify the date the well was plugged. This proposal has inconsequential cost and may provide valuable information. Thus it likely produces a net benefit.

Document Submission

Under the current regulation, each well operator, owner, or designated agent, within 30 days after the completion of any well, shall furnish to DMME a copy of the drilling log. The agency proposes to allow up to 90 days for the delivery of drilling log. The extra time may allow potential geothermal well operator and owners to use staff time more efficiently.

Additionally, DMME proposes to require that all documents and notifications be submitted electronically. It is very likely that any potential firm that has the financial wherewithal to invest at least tens of thousands of dollars to pursue geothermal energy would have the capability and preference for electronic submissions. Thus this proposal would likely not have significant impact.

Businesses and Entities Affected. DMME has never received a permit application for geothermal drilling or well construction. The proposed amendments would apply to businesses, which engage in drilling for geothermal resources or construction of a geothermal well in Virginia, or those that operate, own, control or are in possession of any geothermal well.

Localities Particularly Affected. There have been no known geothermal wells in Virginia, and there are no known locations currently considered likely for development.⁷ Thus, there are no localities known to be particularly affected.

Projected Impact on Employment. There is no current employment in the Commonwealth associated with geothermal energy. The proposed amendments are unlikely to significantly affect that.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. The higher permit application fee and the increased required lengths for cement plugs would moderately increase the cost of developing land for geothermal energy extraction. The proposal to allow PEs to do surveying and plat certification may moderately reduce such costs.

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. No small businesses in the Commonwealth currently participate in the geothermal energy industry. The proposals to increase the permit application fee and to increase the required cement plug lengths would moderately increase costs for any potential future businesses that did choose to drill for geothermal energy in Virginia. The proposal to allow PEs to do surveying and the plat certification could moderately reduce costs.

Alternative Method that Minimizes Adverse Impact. There is no alternative method that would minimize the adverse impact while still maintaining the intended level of safety and environmental protection.

Adverse Impacts:

Businesses. No businesses in the Commonwealth currently participate in the geothermal energy industry. The proposals to increase the permit application fee and to increase the required cement plug lengths would moderately increase costs for any potential future businesses that did choose to drill for geothermal energy in Virginia.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

References:

Axtmann RC. "Environmental Impact of a Geothermal Power Plant." Science. 1975;187(4179):795-803.

Berrizbeitia, Luis D. "Environmental impacts of geothermal energy generation and utilization." Indiana University, 2014.

Clark CE, Harto CB, Sullivan JL, Wang MQ. "Water use in the development and operation of geothermal power plants." Argonne National Laboratory, 2011.

Glassley WE. "Geothermal energy: renewable energy and the environment." Boca Raton: CRC Press; 2010.

_________________________________

¹See http://townhall.virginia.gov/l/ViewPReview.cfm?PRid=1540

²Source: Department of Mines, Minerals and Energy

³Berrizbeitia, Luis D. "Environmental impacts of geothermal energy generation and utilization.” Indiana University, 2014.

⁴Axtmann RC. “Environmental Impact of a Geothermal Power Plant.” Science. 1975;187(4179):795-

803.

⁵Glassley WE. "Geothermal energy: renewable energy and the environment." Boca Raton: CRC

Press; 2010.

⁶Clark CE, Harto CB, Sullivan JL, Wang MQ. "Water use in the development and operation of geothermal power plants." Argonne National Laboratory, 2011.

⁷Source: Department of Mines, Minerals and Energy

Agency's Response to Economic Impact Analysis: The Department of Mines, Minerals and Energy concurs with the economic impact analysis conducted by the Department of Planning and Budget.

Summary:

The amendments (i) update the bonding requirements for consistency with § 45.1-361.31 of the Code of Virginia, (ii) increase the geothermal exploration, production, and injection well permit application fee from $75 to $600, (iii) allow professional engineers to do work that currently only registered surveyors may do, (iv) increase the required lengths for cement plugs of wells, (v) require that the permanent sign marking the location of each abandoned well include the date the well was plugged, (vi) give owners and operators additional time to submit documents and notifications, and (vii) require that all documents and notifications be submitted electronically.

4VAC25-170-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Bottom hole temperature" means the highest temperature measured in the well or bore hole. It is normally attained directly adjacent to the producing zone, and commonly at or near the bottom of the borehole.

"Casing" means all pipe set in wells.

"Conservation" means the preservation of geothermal resources from loss, waste, or harm.

"Correlative rights" means the mutual right of each overlying owner in a geothermal area to produce without waste a just and equitable share of the geothermal resources. Just and equitable shares shall be apportioned according to a ratio of the overlying acreage in a tract to the total acreage included in the geothermal area.

"Department" means the Virginia Department of Mines, Minerals and Energy.

"Designated agent" means that person appointed by the owner or operator of any geothermal resource well to represent him.

"Director" means the Director of the Department of Mines, Minerals and Energy or his authorized agent.

 "Division director" means the Director of the Division of Gas and Oil, also known as the Gas and Oil Inspector as defined in the Virginia Gas and Oil Act of 1990, Chapter 22.1 (§ 45.1-361.1 et seq.) of Title 45.1 of the Code of Virginia or his authorized agent.

"Drilling log" means the written record progressively describing all strata, water, minerals, geothermal resources, pressures, rate of fill-up, fresh and salt water-bearing horizons and depths, caving strata, casing records and such other information as is usually recorded in the normal procedure of drilling. The term shall also include the downhole geophysical survey records or logs if any are made.

"Exploratory well" means an existing well or a well drilled solely for temperature observation purposes preliminary to filing an application for a production or injection well permit.

"Geothermal area" means the general land area that is underlaid or reasonably appears to be underlaid by geothermal resources in a single reservoir, pool, or other source or interrelated sources, as such area or areas may be from time to time designated by the department.

"Geothermal energy" means the usable energy produced or that can be produced from geothermal resources.

"Geothermal reservoir" means the rock, strata, or fractures within the earth from which natural or injected geothermal fluids are obtained.

"Geothermal resource" means the natural heat of the earth at temperatures 70°F or above with volumetric rates of 100 gallons per minute or greater and the energy, in whatever form, present in, associated with, or created by, or that may be extracted from, that natural heat. This definition does not include ground heat or groundwater resources at lower temperatures and rates that may be used in association with heat pump installations.

"Geothermal waste" means any loss or escape of geothermal energy, including, but not limited to:

1. Underground loss resulting from the inefficient, excessive, or improper use or dissipation of geothermal energy; or the locating, spacing, construction, equipping, operating, or producing of any well in a manner that results, or tends to result, in reducing the quantity of geothermal energy to be recovered from any geothermal area in Virginia; provided, however, that unavoidable dissipation of geothermal energy resulting from oil and gas exploration and production shall not be construed to be geothermal waste.

2. The inefficient above-ground transportation and storage of geothermal energy; and the locating, spacing, equipping, operating, or producing of any well or injection well in a manner causing or tending to cause, unnecessary or excessive surface loss or destruction of geothermal energy;

3. The escape into the open air of steam or hot water in excess of what is reasonably necessary in the efficient development or production of a well.

"Geothermal well" means any well drilled for the discovery or production of geothermal resources, any well reasonably presumed to contain geothermal resources, or any special well, converted producing well, or reactivated or converted abandoned well employed for reinjecting geothermal resources.

"Injection well" means a well drilled or converted for the specific use of injecting waste geothermal fluids back into a geothermal production zone for disposal, reservoir pressure maintenance, or augmentation of reservoir fluids.

"Monitoring well" means a well used to measure the effects of geothermal production on the quantity and quality of a potable groundwater aquifer.

"Operator" means any person drilling, maintaining, operating, producing, or in control of any well, and shall include the owner when any well is operated or has been operated or is about to be operated by or under the direction of the owner.

"Owner" means the overlying property owner or lessee who has the right to drill into, produce, and appropriate from any geothermal area.

"Permit" means a document issued by the department pursuant to this chapter for the construction and operation of any geothermal exploration, production, or injection well.

"Person" means any individual natural person, general or limited partnership, joint venture, association, cooperative organization, corporation whether domestic or foreign, agency or subdivision of this or any other state or the federal government, any municipal or quasi-municipal entity whether or not it is incorporated, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind.

"Production casing" means the main casing string which protects the sidewalls of the well against collapse and conducts geothermal fluid to the surface.

"Production record" means written accounts of a geothermal well's volumetric rate, pressure and temperature, and geothermal fluid quality.

"Sequential utilization" means application of the geothermal resource to a use with the highest heat need and the subsequent channeling of the resource to other uses with lower temperature requirements before injection or disposal of the geothermal fluid.

"Surface casing" (water protection string) means pipe designed to protect the freshwater sands.

"Unitized drilling operation" means the management of separately owned tracts overlying a geothermal area as a single drilling unit.

"Water protection string" means a string of casing designed to protect groundwater-bearing strata.

4VAC25-170-30. Bonds, permits and fees.

A. 1. Before any person shall engage in drilling for geothermal resources or construction of a geothermal well in Virginia, such person shall file with the division director a completion bond with a surety company licensed to do business in the Commonwealth of Virginia in the amount of give bond with surety acceptable to the division director and payable to the Commonwealth. At the election of the permit applicant, a cash bond may be given. The amount of bond required shall be sufficient to cover the costs of properly plugging the well and restoring the site, but in no case shall the amount of bond be less than $10,000 for each exploratory and injection well, and $25,000 for each production well. Blanket bonds of $100,000 may be granted at the discretion of the division director.

2. The return of such bonds shall be conditioned on the following requirements:

a. Compliance with all statutes, rules, and regulations relating to geothermal regulations and the permit.

b. Plugging and abandoning the well as approved by the division director in accordance with 4VAC25-170-80.

3. A land stabilization bond of $1,000 per acre of land disturbed shall be required. Such bond will be released once drilling is completed and the land is reclaimed in accordance with 4VAC25-170-40.

4. Liability under any bond may not be terminated without written approval of the division director.

B. Each exploration, production, and injection well permit application shall be accompanied by payment of a $75 $600 application fee.

1. Applications will not be reviewed until the operator or designated agent submits proof of compliance with all pertinent local ordinances.

Before commencement of exploratory drilling operations on any tract of land, the operator or designated agent shall file an exploration permit application with the department. An accurate map of the proposed wells on an appropriate scale showing adjoining property lines and the proposed locations using the Virginia Coordinate System of 1983 (Chapter 17 (§ 55-287 et seq.) of Title 55 of the Code of Virginia), and the depths and surface elevations shall be filed with the application. The application also shall include an inventory of local water resources in the area of proposed development.

2. Before commencement of production or injection well drilling, an application to produce and inject geothermal fluids shall be filed in the form of a notice of intent to proceed in accordance with the provisions of 4VAC25-170-40.

3. New permit applications must be submitted if, either prior to or during drilling, the operator desires to change the location of a proposed well. If the new location is within the boundaries established by the permit or within an unitized drilling operation, the application may be made orally and the division director may orally authorize the commencement or continuance of drilling operations. Within 10 days after obtaining oral authorization, the operator shall file a new application to drill at the new location. A permit may be issued and the old permit cancelled canceled without payment of additional fee. If the new location is located outside the unitized drilling unit covered by the first permit, no drilling shall be commenced or continued until the new permit is issued.

4. All applications, requests, maps, reports, records, notices, filings, submissions, and other data (including report forms) required by or submitted to the department shall be signed by the owner, operator, or designated agent submitting such materials in electronic form or a format prescribed by the director.

5. The department will act on all permit applications within 30 days of receipt of an application or as soon thereafter as practical.

4VAC25-170-40. Notification of intent to proceed.

The notification of intent to proceed with geothermal production or injection as required by 4VAC25-170-30 must be accompanied by (i) an operations plan, (ii) a geothermal fluid analysis, and (iii) a proposal for injection of spent fluids.

1. The operations plan shall become part of the terms and conditions of any permit that is issued, and the provisions of this plan shall be carried out where applicable in the drilling, production, and abandonment phase of the operation. The department may require any changes in the operations plan necessary to promote geothermal and water resource conservation and management, prevent waste, protect potable groundwater drinking supplies, or protect the environment, including a requirement for injection or unitization. The operations plan shall include the following information:

a. An accurate plat or map, on a scale not smaller than 400 feet to the inch, showing the proposed location using the Virginia Coordinate System of 1983 (Chapter 17 (§ 55-287 et seq.) of Title 55 of the Code of Virginia), and surface elevation of the production and injection wells as determined by survey, the courses and distances of such locations from two permanent points or landmarks on said tract, the well numbers, the name of the owner, the boundaries and acreage of the tract on which the wells are to be drilled, the location of water wells, surface bodies of water, actual or proposed access roads, other production and injection wells on adjoining tracts, the names of the owners of all adjoining tracts and of any other tract within 500 feet of the proposed location, and any building, highway, railroad, stream, oil or gas well, mine openings or workings, or quarry within 500 feet of the proposed location. The location must be surveyed and the plat certified by a professional engineer or registered surveyor and bear his certificate number.

b. A summary geologic report of the area, including depth to proposed reservoir; type of reservoir; anticipated thickness of reservoir; anticipated temperature of the geothermal resource; anticipated porosity, permeability and pressure; geologic structures; and description of overlying formations and aquifers.

c. The method of meeting the guidelines of the Erosion and Sediment Control Regulations as adopted by the Virginia Soil and State Water Conservation Control Board pursuant to §§ 10.1-561 to 10.1-564 § 62.1-44.15:52 of the Code of Virginia.

d. The method of disposing of all drilling muds and fluids, and all cement and other drilling materials from the well site; the proposed method of preventing such muds, fluids, drillings, or materials from seeping into springs, water wells, and surface waters during drilling operations.

e. The method of construction and maintenance of access roads, materials to be used, method to maintain the natural drainage area, and method of directing surface water runoff from disturbed areas around undisturbed areas.

f. The method of removing any rubbish or debris during the drilling, production, and abandonment phases of the project. All waste shall be handled in a manner that prevents fire hazards or the pollution of surface streams and groundwater.

g. The primary and alternative method of spent geothermal fluid disposal. All disposal methods shall be in accordance with state and federal laws for the protection of land and water resources.

h. The methods of monitoring fluid quality, fluid temperature, and volumetric rate of production and injection wells.

i. The method of monitoring potable drinking water aquifers close to production and injection zones.

j. The method of monitoring for land subsidence.

k. The method of plugging and abandoning wells and a plan for reclaiming production and injection well sites.

l. The method of cleaning scale and corrosion in geothermal casing.

m. A description of measures that will be used to minimize any adverse environmental impact of the proposed activities on the area's natural resources, aquatic life, or wildlife.

2. Geothermal fluid analysis.

a. A geothermal fluid analysis shall be submitted with the operations plan, and annually thereafter.

b. Acceptable chemical parameters and sampling methods are set forth in 4VAC25-170-70 B.

3. Proposal for injection of geothermal fluids.

a. Geothermal fluid shall be injected into the same geothermal area from which it was withdrawn in the Atlantic Coastal Plain. Plans for injection wells in this area shall include information on:

(1) Existing reservoir conditions.

(2) Method of injection.

(3) Source of injection fluid.

(4) Estimate of expected daily volume in gallons per minute per day.

(5) Geologic zones or formations affected.

(6) Chemical analyses of fluid to be injected.

(7) Treatment of spent geothermal fluids prior to injection.

b. Exemptions to the injection rule for geothermal fluid shall be approved by the department. Such requests shall be accompanied by a detailed statement of the proposed alternative method of geothermal fluid disposal; the effects of not injecting on such reservoir characteristics as pressure, temperature, and subsidence; and a copy of the operator's or designated agent's no-discharge permit.

4VAC25-170-50. Well construction and maintenance.

A. Every person drilling for geothermal resources in Virginia, or operating, owning, controlling or in possession of any well as defined herein, shall paint or stencil and post and keep posted in a conspicuous place on or near the well a sign showing the name of the person, firm, company, corporation, or association drilling, owning, or controlling the well, the company or operator's well number, and the well identification number thereof. Well identification numbers will be assigned to all approved permits according to the USGS groundwater site inventory system. The lettering on such sign shall be kept in a legible condition at all times.

B. The division director shall receive notice prior to the commencement of well work concerning the identification number of the well and the date and time that well work is scheduled to begin. Telephone notice will fulfill this requirement.

C. 1. Drilling-fluid materials sufficient to ensure well control shall be maintained in the field area and be readily accessible for use during drilling operations.

2. All drilling muds shall be used in a fashion designed to protect freshwater-bearing sands, horizons, and aquifers from contamination during well construction.

3. Drilling muds shall be removed from the drilling site after the well is completed and disposed of in the method approved in the operations plan.

4. Operations shall be conducted with due care to minimizing the loss of reservoir permeability.

D. All wells must be drilled with due diligence to maintain a reasonably vertical well bore. Deviation tests surveys must be recorded in the drilling log for every 1000 feet drilled.

E. 1. A well may deviate intentionally from the vertical with written permission by the division director. Such permission shall not be granted without notice to adjoining landowners, except for side-tracking mechanical difficulties.

2. When a well has been intentionally deviated from the vertical, a directional survey of the well bore must be filed with the department within 30 days after completion of the well.

3. The department shall have the right to make, or to require the operator to make, a directional survey of any well at the request of an adjoining operator or landowner prior to the completion of the well and at the expense of said adjoining operator or landowner. In addition, if the department has reason to believe that the well has deviated beyond the boundaries of the property on which the well is located, the department also shall have the right to make, or to require the operator to make, a directional survey of the well at the expense of the operator.

F. 1. Valves approved by the division director shall be installed and maintained on every completed well so that pressure measurements may be obtained at any time.

2. Blow-out preventers during drilling shall be required when the working formation pressure on the wellhead connection is or could be greater than 1000 psi.

G. 1. Geothermal production wells shall be designed to ensure the efficient production and elimination of waste or escape of the resource.

2. All freshwater-bearing sands, horizons, and aquifers shall be fully protected from contamination during the production of geothermal fluids.

3. a. Surface casing The water protection string shall extend from a point 12 inches above the surface to a point at least 50 feet below the deepest known groundwater aquifer or horizon.

b. The operator, owner, or designated agent shall use new casing. Only casing that meets American Petroleum Institute specifications, as found in API 5AC, Restricted Yield Strength Casing and Tubing, March, 1982, API 5A, Casing Tubing, and Drill Pipe, March, 1982, and API 5AX, High-Strength Casing, Tubing, and Drill Pipe, March, 1982, (and all subsequent revisions thereto), shall be used in geothermal production wells.

c. Cement introduced into a well for the purpose of cementing the casing or for the purpose of creating a permanent bridge during plugging operations shall be placed in the well by means of a method approved by the division director. In addition:

(1) Each surface string shall be cemented upward from the bottom of the casing to the surface.

(2) Cement shall be allowed to stand for 24 hours or until comprehensive strength equals 500 psi before drilling.

d. The department may modify casing and cementing requirements when special conditions demand it.

4. a. The owner, operator, or designated agent shall use new casing. Only production casing that meets American Petroleum Institute specifications, as found in API 5AC, Restricted Yield Strength Casing and Tubing, March, 1982, API 5A, Casing Tubing, and Drill Pipe, March, 1982, and API 5AX, High-Strength Casing, Tubing, and Drill Pipe, March, 1982, (and all subsequent revisions thereto), shall be used in geothermal production wells.

b. Each well shall be cemented with a quantity of cement sufficient to fill the annular space from the production zone to the surface. The production casing shall be cemented to exclude, isolate, or segregate overlapping and to prevent the movement of fluids into freshwater zones.

c. Cement shall be allowed to stand for 24 hours or until compressive strength equals 500 psi before drilling.

d. Cement introduced into a well for the purpose of cementing the casing or for the purpose of creating a permanent bridge during plugging operations shall be placed in the well by means of a method approved by the division director.

e. The department may modify casing requirements when special conditions demand it.

f. The division director may require additional well tests if production or monitoring records indicate a leak in the production casing. When tests confirm the presence of a production casing leak, the division director may require whatever actions are necessary to protect other strings and freshwater horizons.

H. 1. The owner, operator, or designated agent shall use new casing. Only casing that meets American Petroleum Institute specifications, as found in API 5AC, Restricted Yield Strength Casing and Tubing, March, 1982, API 5A, Casing Tubing, and Drill Pipe, March, 1982, and API 5AX, High-Strength Casing, Tubing, and Drill Pipe, March, 1982, (and all subsequent revisions thereto), shall be used in geothermal injection wells.

2. The casing program shall be designed so that no contamination will be caused to freshwater strata. Injection shall be done through production casing adequately sealed and cemented to allow for monitoring of the annulus between the injection string and the last intermediate string or water protection string, as the case may be. Injection pressure shall be monitored and regulated to minimize the possibility of fracturing the confining strata.

3. Production casing shall be cemented through the entire freshwater zone.

4. The rate of injection of geothermal fluid shall not exceed the production rate.

5. Adequate and proper wellhead equipment shall be installed and maintained in good working order on every injection well not abandoned and plugged, so that pressure measurements may be obtained at any time.

I. 1. The division director or a departmental representative shall have access to geothermal well sites during business reasonable hours.

2. The state geologist or his designated representative shall have access to any drilling site for the purpose of examining whole cores or cuttings as may be appropriate.

J. At least 10 days prior to any chemical cleaning of production casing, the operator shall notify the division director in writing of the type and amount of chemical to be used and obtain approval for its use.

K. The well operator, or his designated agent, shall file a completion report within 60 90 days after well work is completed. The completion report shall be accompanied by copies of any drilling logs required under 4VAC25-170-40.

4VAC25-170-60. Records, logs and general requirements.

A. 1. During the drilling and production phases of every well, the owner, operator, or designated agent responsible for the conduct of drilling operations shall keep at the well an accurate record of the well's operations as outlined in subsection C of this section. These records shall be accessible to the division director at all reasonable hours.

2. The refusal of the well operator or designated agent to furnish upon request such logs or records or to give information regarding the well to the department shall constitute sufficient cause to require the cessation or shutting down of all drilling or other operations at the well site until the request is honored.

3. Drilling logs supplied to the department will be kept in confidence in accordance with § 40.1-11 of the Code of Virginia.

4. 3. Copies of all drilling logs and productions records required by this chapter shall be sent electronically or mailed submitted to: the division director.

Virginia Gas and Oil Division Director Department of Mines, Minerals and Energy Division of Gas and Oil P.O. Box 159 Lebanon, VA 24266

5. 4. Samples representative of all strata penetrated in each well shall be collected and furnished to the Commonwealth. Such samples shall be in the form of rock cuttings collected so as to represent the strata encountered in successive intervals no greater than 10 feet. If coring is done, however, the samples to be furnished shall consist, at a minimum, of one-quarter segments of core obtained. All samples shall be handled as follows:

a. Rock cuttings shall be dried and properly packaged in a manner that will protect the individual samples, each of which shall be identified by the well name, identification number, and interval penetrated.

b. Samples of core shall be boxed according to standard practice and identified as to well name and identification number and interval penetrated.

c. All samples shall be shipped or mailed, charges prepaid, to:

Department of Mines, Minerals and Energy Division of Mineral Resources Fontaine Research Park 900 Natural Resources Drive P.O. Box 3667 Charlottesville, VA 22903

B. Each well operator, owner, or designated agent, within 30 90 days after the completion of any well, shall furnish submit to the division director a copy of the drilling log. Drilling logs shall list activities in chronological order and include the following information:

1. The well's location and identification number.

2. A record of casings set in wells.

3. Formations encountered.

4. Deviation tests for every one thousand feet drilled.

5. Cementing procedures.

6. A copy of the downhole geophysical logs.

C. The owner, operator, or designated agent of any production or injection well shall keep or cause to be kept a careful and accurate production record. The following information shall be reported to the division director on a monthly basis for the first six months and quarterly thereafter, or as required by permit, unless otherwise stated:

1. Pressure measurements as monitored by valves on production and injection wells.

2. The volumetric rate of production or injection measured in terms of the average flow of geothermal fluids in gallons per minute per day of operation.

3. Temperature measurements of the geothermal fluid being produced or injected, including the maximum temperature measured in the bore-hole and its corresponding depth, and the temperature of the fluid as measured at the discharge point at the beginning and conclusion of a timed production test.

4. Hydraulic head as measured by the piezometric method.

4VAC25-170-70. Groundwater monitoring.

A. 1. Groundwater shall be monitored through special monitoring wells or existing water wells in the area of impact, as determined by the department.

2. Monitoring shall be performed and reported to the division director daily on both water quality and piezometric head for the first 30 days of geothermal production. Thereafter, quarterly tests for piezometric head and for water quality shall be reported to the division director.

3. The monitoring of groundwater shall meet the following conditions:

a. A minimum of one monitoring well per production or injection well is required. Monitoring wells shall monitor those significant potable aquifers through which the well passes as required by the department.

b. The monitoring wells shall be located within the first 50% of the projected cone of depression for the geothermal production well.

c. The well(s) wells shall be constructed to measure variations in piezometric head and water quality. Groundwater shall be chemically analyzed for the following parameters: mineral content (alkalinity, chloride, dissolved solids, fluoride, calcium, sodium, potassium, carbonate, bicarbonate, sulfate, nitrate, boron, and silica); metal content (cadmium, arsenic, mercury, copper, iron, nickel, magnesium, manganese, and zinc); and general parameters (pH, conductivity, dissolved solids, and hardness).

d. The department may require additional analyses if levels of the above parameters in subdivision 3 c of this subsection indicate their necessity to protect groundwater supplies.

B. 1. Chemical analyses of geothermal fluids shall be filed with the division director on an annual basis.

2. Samples for the chemical fluid analysis shall be taken from fluid as measured at the discharge point of the production well at the conclusion of a two-hour production test.

3. The production fluid shall be chemically analyzed for the following parameters: mineral content (alkalinity, chloride, dissolved solids, fluoride, calcium, sodium, potassium, carbonate, bicarbonate, sulfate, nitrate, boron, and silica); metal content (cadmium, arsenic, mercury, copper, iron, nickel, magnesium, manganese, and zinc); gas analyses (hydrogen sulfide, ammonia, carbon dioxide, and gross alpha); and general parameters (pH, conductivity, and dissolved solids).

4. The department may require additional analyses if levels of the above parameters in subdivision 3 of this subsection indicate follow-up tests are necessary.

C. 1. Subsidence shall be monitored by the annual surveys of a professional engineer or certified surveyor from vertical benchmarks located above the projected cone of depression, as well as points outside its boundaries. The surveys shall be filled filed with the division director by the operator or designated agent.

2. The department may order micro-earthquake monitoring, if surveys indicate the occurrence of subsidence.

D. 1. The operator, owner, or designated agent shall maintain records of any monitoring activity required in his permit or by this chapter. All records of monitoring samples shall include:

a. The well identification number.

b. The date the sample was collected.

c. Time of sampling.

d. Exact place of sampling.

e. Person or firm performing analysis.

f. Date analysis of the sample was performed.

g. The analytical method or methods used.

h. Flow-point at which sample was taken.

i. The results of such analysis.

2. The operator, owner, or designated agent shall retain for a period of five years any records of monitoring activities and results, including all original strip chart recordings of continuous monitoring installations. The period of retention will automatically be extended during the course of any litigation regarding the discharge of contaminants by the permittee until such time as the litigation has ceased or when requested by the division director. This requirement shall apply during the five-year period following abandonment of a well.

4VAC25-170-80. Abandonment and plugging of wells.

A. Notification of intent to abandon any exploration, production, or injection well must shall be received by submitted to the division director during working hours at least one day 48 hours before the beginning of plugging operations. When notification of intent to abandon an exploratory, production, or injection well is received, the division director may send a departmental representative to the location specified and at the time stated to witness the plugging of the well.

B. 1. Any drilling well completed as a dry hole from which the rig is to be removed shall be cemented unless authorization to the contrary has been given by the division ] director.

2. The bottom of the hole shall be filled to, or a bridge shall be placed at the top of, each producing formation open to the well bore. Additionally, a cement plug not less than 50 100 feet in length shall be placed immediately above each producing formation.

3. A continuous cement plug shall be placed through all freshwater-bearing aquifers and shall extend at least 50 feet above and 50 feet below said aquifers.

4. A plug not less than 20 100 feet in length shall be placed at or near the surface of the ground in each hole.

5. The interval between plugs shall be filled with a nonporous medium.

6. The method of placing cement in the holes shall be by any method approved by the division director in advance of placement.

7. The exact location of each abandoned well shall be marked by a piece of pipe not less than four inches in diameter securely set in concrete and extending at least four feet above the general ground level. A permanent sign of durable construction shall be welded or otherwise permanently attached to the pipe, and shall contain the well identification information required by 4VAC25-170-50 A and the date the well was plugged.

8. When drilling operations have been suspended for 60 days, the well shall be plugged and abandoned unless written permission for temporary abandonment has been obtained from the division director.

9. Within 20 days after the plugging of any well, the responsible operator, owner, or designated agent who plugged or caused the well to be plugged shall file a notice of intent to plug or abandon and an affidavit with the department indicating the manner in which the well was plugged.

Titles of Regulations: 6VAC15-80. Standards for Planning, Design, Construction and Reimbursement of Local Correctional Facilities (repealing 6VAC15-80-10 through 6VAC15-80-1270).

6VAC15-81. Standards for Planning, Design, Construction, and Reimbursement of Local Correctional Facilities (adding 6VAC15-81-10 through 6VAC15-81-1480).

Statutory Authority: §§ 53.1-5, 53.1-80, and 53.1-82 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 11, 2017.

Agency Contact: Jim Bruce, Agency Regulatory Coordinator, Department of Corrections, Department of Corrections, PO Box 26963, Richmond, VA 23261-6963, telephone (804) 887-8215, or email james.bruce@vadoc.virginia.gov.

Basis: Sections 53.1-5, 53.1-80, 53.1-81, and 53.1-82 of the Code of Virginia authorize the Board of Corrections prescribe standards for the planning, design, construction, and reimbursement of local correctional facilities.

Purpose: Current 6VAC15-80 was originally issued in 1994, and since issuance there have been significant changes in the Code of Virginia, building and fire codes, and audit standards for the construction of local correctional facilities. Technological advances allow for changes in facility staff and management that impact the facility physical plant. Updating this chapter provides for improved facilities that preserve the health and enhance the safety of staff and inmates while ensuring that public funds are spent wisely to build safe, secure, and durable jail facilities.

Substance: The proposed regulation includes provisions that:

1. Limit value management analyses (VMA) that must currently be done for all building and renovation projects to only those projects that cost $10 million or more.

2. Require that armories in correctional facilities have exhaust systems.

3. Modify current requirements for prisoner intake areas.

4. Change the percentage of beds that must be dedicated to each security level.  

5. Add exceptions to climate control requirements so that warehouses, industrial spaces, and mechanical and electrical spaces will not have to be heated and air conditioned.

6. Change requirements for special purpose cells, such as isolation, medical, and segregation cells, so that localities can build 20% of these cells at a less than maximum security level (current standards allow 10% lower security cells). These changes will also allow localities to install flushing floor drains instead of toilets in cells designed for violent or self-destructive prisoners and build cuff slots in doors for enclosed showers in special purpose housing units.

7. Change recreational space requirements so that facilities must only have 10 square feet of recreational space for each inmate for a facility designed to accommodate up to 480 inmates rather than up to the currently required 500 inmate capacity.

8. Reduce the number of noncontact visiting spaces from one per every 12 inmates to one per every 20 inmates and allow up to 75% of noncontact visitation to be off-site (video) visitation.

9. Increase the minimum size of kitchen space from 10 square feet for each prisoner up to 100 prisoners of rated capacity and three square feet for each prisoner in the rated capacity over 100 to a minimum of 1,500 square feet and three additional square feet for each prisoner over 100 in the rated capacity. The board also proposes to require that facility kitchen areas include a staff dining or break room.

10. Require facilities with three or more stories to have at least two elevators with secure local control.

11. Require electronic sound monitoring systems that allow prisoners to notify staff of emergencies, intercoms at security doors, and video monitoring of blind spots in corridors, sally ports, building entrances, and building exteriors.

12. Require that there be at least one plumbing valve to shut off water supplies in each housing unit and additional shut-off valves for each special purpose and intake cell.

13. Require noise abatement material for housing, activity, and intake areas.

14. Prohibit magnetic locks as they are not secure during power outages and are generally less secure than other available alternatives.

15. Prohibit tank-type toilets.

Issues: The existing regulation is out of date and the promulgation of replacement chapter 6VAC15-81 is intended to update the current planning, design, construction, and reimbursement standards to comply with the Code of Virginia, current fire and building codes, audit standards, and current correctional practice. This regulation will improve public safety and provide for a safe environment for staff and offenders. Building a new jail facility is a rare opportunity in the career of local authorities; this chapter incorporates the experience from many projects to serve as an informative guide to make best use of public resources to build safe, secure, and durable facilities.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Corrections (Board) proposes to repeal its regulation that sets standards for constructing local correctional facilities and replace it with a regulation that updates standards to reflect changes in the Code of Virginia, uniform statewide building and fire codes and best building practices for correctional facilities.

Result of Analysis. Benefits likely outweigh costs for these proposed changes.

Estimated Economic Impact. The current regulation governing construction standards of local correctional facilities was promulgated in 1994 and modified in 2009. Since that time, there have been many changes to the Code of Virginia (COV), the uniform statewide building code (USBC) and fire code regulations and to best practice standards for correctional facilities. In order to bring this regulation into conformity with existing requirements in law and in other regulations, the Board now proposes to repeal the current regulation and replace it with a new regulation.

Many of the changes that the Board proposes for the new regulation do not change current building requirements as those requirements are set by either the COV or the USBC and fire code regulations. For instance, Americans with Disabilities Act (ADA) requirements for new construction and renovation of existing buildings are set in the USBC. The Board proposes to harmonize their construction standards with the USBC by providing for ADA accessible cells. Changes such as these that harmonize this regulation with other existing legal requirements will likely not cause any entities to incur any additional costs. Affected entities will benefit from these changes as they remove or change language that conflicts with current law and, therefore, might lead to confusion.

Many other changes that are proposed by the Board are meant to clarify regulatory requirements that may have been incomplete or confusing. For instance, current regulatory language that governs libraries services were written in 1994 and anticipates that such services would include a mobile book cart. Technological changes that allow prisoners to choose from all available books in a facility (rather than just being able to choose from the number of books that would fit on a cart) have made mobile book carts obsolete. The Board now proposes to replace language referencing mobile book carts with language that requires "alternative library services" for prisoners who cannot access a facility's library. Changes like this that are designed to update and clarify requirements will likely not cause any entity to incur costs. These changes will benefit interested parties as they make the regulation easier to understand.

The Board also proposes numerous substantive changes for the replacement regulation they are promulgating. Specifically, the Board proposes to:

1. Limit value management analyses (VMA)¹ that must currently be done for all building and renovation projects to only those projects that cost $10 million or more. The Board proposes this change because it has concluded that projects smaller than $10 million are unlikely to save enough money on account of the VMA to justify the cost. Board staff estimates that this change will save localities completing smaller projects between $50,000 and $100,000 because they will not have to pay for a VMA.

2. Require that armories in correctional facilities have exhaust systems. Board staff reports that the typical cost for an exhaust system to be installed in an armory is approximately $1,000. The costs for this change are likely outweighed by the benefit of increased safety that will accrue to correctional facility staff because the exhaust system will vent out any leaking or accidentally dispersed chemical agents (mainly, tear gas).

3. Modify current requirements for prisoner intake areas. Currently, facilities must have one intake bed for every 10 beds of rated prisoner capacity. The Board proposes to keep this ratio for the first 400 bed of design capacity but allow facilities with a rated capacity of greater than 400 beds to only have one intake bed for every 40 beds of rated capacity over the first 400 beds. This change will likely decrease the costs of building or renovating larger facilities although Board staff does not have an estimate for the magnitude of those cost savings.

4. Change the percentage of beds that must be dedicated to each security level. Currently, facilities are required to be 20% maximum security, 40% medium security and 40% minimum security. The Board proposes to change these ratios so that facilities are 30% maximum security, 40% medium security and 30% minimum security. Board staff reports that requiring more maximum security beds, which have larger cells than other security levels, will increase construction costs but that those costs will be partially or completely offset by another proposed change that allows slightly smaller medium security cells. This change will benefit localities as it allows them to house prisoners in more appropriate (and therefore safer) cells.

5. Add exceptions to climate control requirements so that warehouses, industrial spaces and mechanical and electrical spaces will not have to be heated and air conditioned. These exceptions will allow localities that are building or renovating correctional facilities some cost savings because they will not have to build these areas so that they are heated and cooled and will also not have to incur additional ongoing energy costs for heating and cooling these areas.

6. Change requirements for special purpose cells (isolation, medical and segregation cells) so that localities can build 20% of these cells at a less than maximum security level (current standards allow 10% lower security cells). These changes will also allow localities to install flushing floor drains instead of toilets in cells designed for violent or self-destructive prisoners and build cuff slots in doors for enclosed showers in special purpose housing units. Board staff reports that increasing the percentage of lower security special purpose cells will save localities some building costs. Other changes to special purpose cell requirements are expected to increase both prisoner and staff security.

7. Change recreational space requirements so that facilities must only have 10 square feet of recreational space for each inmate for which the facility is designed up to 480 inmates rather than up to the currently required 500 inmate capacity. Localities that are building or renovating larger facilities will likely see some costs saving from having to build and secure 200 fewer square feet of recreational area.

8. Reduce the number of non-contact visiting spaces (from one per every 12 inmates to one per every 20 inmates) and allow up to 75% of non-contact visitation to be off-site (video) visitation. Board staff reports that the costs of installing and maintaining video equipment will be more than offset by lower staff costs associated with not having to process visitors so that they do not bring in contraband and not having additional guards for contact visits. Changing visitation in this way may also increase staff and inmate security by reducing incidences of potentially dangerous contraband making its way into facilities.

9. Increase the minimum size of kitchen space from a minimum of 10 square feet for each prisoner up to 100 prisoners of rated capacity and three square feet for each prisoner in the rated capacity over 100 to a minimum of 1,500 square feet and three additional square feet for each prisoner over 100 in the rated capacity. The Board also proposes to require that facility kitchen areas include a staff dining or break room. Board staff reports that these changes will increase building costs but the additional kitchen area will allow facilities to better accommodate the multiple menus now required to meet religious, allergy and therapeutic dietary needs. Additionally, having a staff dining or break room will allow localities to better accommodate staff who are not allowed for safety reasons to eat at their workstations.

10. Require facilities with three or more stories to have at least two elevators with secure local control. Board staff reports that this will slightly increase construction/renovation costs for larger facilities but will also provide the benefit of greater operational flexibility and security.

11. Require electronic sound monitoring systems that allow prisoners to notify staff of emergencies, intercoms at security doors and video monitoring of blind spots in corridors, sallyports,² building entrances and building exteriors. Board staff reports that these requirements will increase cost but will allow these facilities to comply with the federal Prison Rape Elimination Act and will increase safety for both prisoners and staff.

12. Require that there be at least one plumbing valve to shut off water supplies in each housing unit and additional shut off valves for each special purpose and intake cell. Board staff reports that these changes will increase costs but will also facilitate contraband recovery and reduce nuisance flooding. These changes will also allow staff to limit the areas affected by necessary water cut offs which will reduce prisoner unrest that has the potential to put staff at risk.

13. Require noise abatement material for housing, activity and intake areas. Board staff reports that localities will have control over the type and quality of noise abatement material so the magnitude of costs will vary greatly from project to project. Staff also reports that this change is aimed at increasing security and decreasing the stress that noisy, echoing spaces can cause for both staff and prisoners.

14. Prohibit magnetic locks as they are not secure during power outages and are generally less secure than other available alternatives. Board staff reports that this change is not expected to increase costs for localities.

15. Finally, the Board proposes to prohibit tank-type toilets. Board staff reports that there is a negligible difference between the cost of tank-type toilets and the cost of tankless toilets but that the lids and various rods and levers inside tank-type toilets can be used as weapons. Banning this type of toilet will likely increase staff and prisoner safety.

Although Board staff did not have costs estimates for most of the substantive changes to this regulation, the benefits in increased safety and efficiency for facilities are large enough that they likely exceed those unquantified costs.

Businesses and Entities Affected. These proposed regulatory changes will affect localities that build or renovate local correctional facilities either separately or as part of a regional building effort. Currently, there are 75 local correctional facilities in the Commonwealth.

Localities Particularly Affected. Localities that build or renovate local correctional facilities will be affected by these proposed regulatory changes.

Projected Impact on Employment. These proposed regulatory changes are unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Real Estate Development Costs. Some of these proposed regulatory changes are likely to increase real estate development costs for building local correctional facilities and some of these proposed regulatory changes are likely to decrease real estate development costs for building local correctional facilities.

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. No small businesses will be adversely affected by these proposed regulatory changes.

Alternative Method that Minimizes Adverse Impact. No small businesses will be adversely affected by these proposed regulatory changes.

Adverse Impacts:

Businesses. No businesses will be adversely affected by these proposed regulatory changes.

Localities. Localities in the Commonwealth may see some cost increases for building or renovating local correctional facilities. Any cost increases must be weighed against expected long term cost savings that may occur as well as anticipated benefits in greater efficiency and enhanced prisoner and staff safety.

Other Entities. No other entities are likely to be adversely affected by these proposed changes.

________________________

¹ Value management analyses are studies done of proposed facility design for the purposes of ensuring that the design satisfies functionality requirements and is cost-effective. Such analyses also seek to ensure quality and efficiency for the project.

² A sallyport is a secure vestibule constructed of secure walls, a secure ceiling, and secure floor with two or more interlocking secure doors.

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

Summary:

The proposed regulatory action repeals the existing Standards for Planning, Design, Construction and Reimbursement of Local Correctional Facilities (6VAC15-80) and replaces it with a new regulation 6VAC15-81. The proposed new regulation updates standards to reflect (i) changes in the Code of Virginia and uniform building and fire codes and (ii) best practices for correctional facilities.

CHAPTER 81
STANDARDS FOR PLANNING, DESIGN, CONSTRUCTION, AND REIMBURSEMENT OF LOCAL CORRECTIONAL FACILITIES

6VAC15-81-10. (Reserved.)

6VAC15-81-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Acceptable" means those applicable standards or practices with which a registered professional architect, engineer, or other duly licensed or recognized authority must comply.

"Access openings" means panels or doors used for access into areas including ceilings, pipe chases, plumbing chases, or shafts.

"Accessible by inmates" means the same as "inmate accessible."

"ADA accessible" means in compliance with the Americans with Disabilities Act (42 USC § 12101 et seq.).

"ADP" means average daily population.

"A/E" means the architect or engineer and his associated firm hired by the owner for study, design, or construction of the jail project.

"Analysis" means a detailed examination of the local or regional criminal justice system and its elements in order to determine the impact these elements have had on the need for current and future jail space.

"Approved" means an item approved by the reviewing authority.

"Artificial light" means light other than natural light.

"ASTM" means the American Society for Testing and Materials, the most current edition. When ASTM is referenced, the reference is to the Standards in ASTM Standards on Detention and Correctional Facilities, unless otherwise specified. Testing for compliance with ASTM Standards shall be performed by an independent nationally recognized testing laboratory.

"Board" means the Virginia State Board of Corrections.

"Building code" means Virginia Uniform Statewide Building Code (13VAC5-63), the Virginia Industrialized Building Code (13VAC5-91), and the Virginia Statewide Fire Prevention Code (13VAC5-51).

"CCJB" means Community Criminal Justice Board.

"CCTV" means closed circuit television or electronic surveillance system.

"Ceilings" means overhead interior surface that covers the upper limit of an interior room or space.

"Cell" means a space, the size of which are specified in this chapter, enclosed by secure construction containing plumbing fixtures and usually a bunk in which an inmate is detained or sleeps. Cells can be single or multiple occupancy depending upon custody level.

"Cell tier" means levels of cells vertically stacked above one another within a housing unit.

"Central intake unit" means an area constructed to provide, at a minimum, space for intake, temporary holding, booking, court and juvenile (if approved for juveniles) holding, classification, and release functions.

"Classification unit" means a cell or unit utilized for short-term holding of inmates for classification purposes after intake or booking and prior to being assigned to general population or other housing.

"Community based corrections plan" or "CBCP" means a comprehensive assessment of an owner's correctional needs and how these needs will be met through submissions of a needs assessment and a planning study.

"Community custody" means inmates incarcerated by the judicial system and classified for involvement in local work forces; participating in work, education, and rehabilitation release; and weekend and nonconsecutive sentencing.

"Construction completion" means the construction of the building is considered complete when a certificate of occupancy or temporary certificate of occupancy is issued for the building to be occupied by inmates.

"Construction documents" means the detailed working drawings and project manual containing detailed specifications and other supporting documents as approved by the reviewing authority.

"Contact visiting" means a space where inmates and visitors at a minimum may pass papers to one another.

"Control room" means a space enclosed by secure walls, secure roof or secure ceiling, and secure floor from which a jail officer may supervise inmates and control security systems in a portion of the jail, such as locks, doors, etc.

"Control station" means a space not enclosed by security walls, roof or ceiling, and floor from which a jail officer may supervise inmates and control security systems in a portion of the jail, such as locks, doors, etc.

"Correctional facility" means the same as "local correctional facility."

"Dayroom" means a secure area contiguous to an inmate sleeping (cells or rooms) area, with controlled access from the inmate sleeping area, to which inmates may be admitted for daytime activities.

"Department" means the Department of Corrections.

"Design capacity" means the maximum number of general beds for which the facility is designed and constructed based on the space requirements in this chapter as established by the Board of Corrections.

"Direct supervision" means a specific style of management where correctional officers are stationed fulltime inside the dayroom rather than solely observing inmate activity from within secure control points. Within this concept, services are generally brought to the inmate rather than taking the inmate to the service.

"Direct visual observation" means direct line of sight by a correctional officer, not CCTV.

"Dormitory" means an area designed for accommodating five or more inmates and used to house minimum custody and community custody inmates.

"Encapsulation" means the same as "secure encapsulation."

"Expansion" means to add an area of new construction to an existing local correctional facility by constructing additional areas.

"Facility" means a jail or lockup including all associated buildings and site.

"50% completion" (of construction value) means the day the project reaches the 50% point between the issuance of a building construction permit and the issuance of the final certificate of occupancy.

"General population housing" means maximum, medium, minimum, and community custody housing. General population excludes special purpose cells and intake or booking.

"Glazing" means any infill material, usually transparent or translucent glass, polycarbonate or combination thereof, and related components, used in a framed assembly.

"Holding" means a space or room designed for temporary containment of detainees or inmates while awaiting actions such as transfer, transportation, release, etc. Holding of this nature usually does not exceed four hours.

 "Housing unit" means a group of single person cells, multi-occupancy cells, or group of such cells with a common dayroom, dormitory, intake, special purpose, or classification areas that provide accommodations for sleeping, approved personal effects, and personal hygiene.

"IMC" means intermediate metal conduit.

"Indirect supervision" means supervision method other than direct supervision.

"Inmate" means any person committed to a jail by a legal commitment document.

"Inmate accessible" means areas an inmate occupies or utilizes inside the secure perimeter, including all sally ports.

"Intake" means a cell, group of cells, and open seating within a jail designed to hold one or more persons while awaiting processing, booking, classification, or to the general housing units after booking. Intake holding time does not usually exceed 72 hours. Cells holding more than one person are frequently referred to as group holding.

"Interior partition" means a wall within the secure perimeter, which is not required to be a perimeter security wall or an interior security wall.

"Interior security walls" means walls within but not a part of a secure perimeter that are utilized to restrict movement within the secure area, including housing units, dormitories, corridors, inmate activity areas, intake area, kitchen, laundry, and program areas.

"Jail" means the same as "local correctional facility."

"LIDS" means LIDS-VACORIS, the Compensation Board's inmate data system.

"Life safety operations" means the function of certain electrical, mechanical, and other building equipment provided for the purpose of ensuring the life, health, and safety of building occupants in the case of an emergency situation.

"Light" means the same as "artificial or natural light."

"Local correctional facility" means any jail, jail farm, or other place used for the detention or incarceration of adult inmates, excluding a lockup, which is owned, maintained, or operated by, or under contract with, any political subdivision or combination of political subdivisions of the Commonwealth. This shall also include facilities operated by a private entity under contract with a regional jail authority under provision of § 53.1-71.1.

"Locality" means a county or city.

"Lockup" means a facility, separate from a jail facility, operated by or for a local government for detention of persons for a short period of time as stated in 6VAC15-40-10.

"Master control" means the principal secure room of the entire facility where the control of safety and security of the jail through electronic equipment for surveillance, communication, fire and smoke detection, and emergency functions. This room is enclosed by walls, roof or ceiling, floor assemblies meeting secure perimeter requirements as well as having opening protectives meeting ASTM Grade 1 requirements. This room includes control of the entrances to the jail through the secure perimeter and capability of control of ingress and egress to cells, dayrooms, corridors, and other spaces within the entire jail.

"Maximum custody inmates" means persons who cannot be allowed to mingle physically with other inmates without close supervision, normally because of assaultive and aggressive behavior or high escape risk.

"Medium custody inmates" means those persons who require a moderate level of staff supervision and secure accommodations against escape, but who can be allowed to participate in group activities.

"Mezzanine" means the same as "cell tier."

"Minimum custody inmates" means those inmates classified as not dangerous or likely to escape, but who are of sufficient concern to require a minimum level of supervision.

"Minor renovation project" means renovation project that does not result in an increase in beds and has an estimated cost of less than $1 million.

"Multiple occupancy cell" means a cell designed for two, three, or four inmates.

"Natural light" means light provided by sunlight as viewed from within a housing unit.

"Needs assessment" means an evaluation of trends and factors at the local or regional level affecting current and future facility needs, and the assessment of resources available to meet such needs. The needs assessment is used as the basis for a request for reimbursement of local correctional facility construction costs.

"New construction" means to build, expand, or replace a local correctional facility.

"Operating capacity" means the same as "design capacity."

"Owner" means the locality, localities, or jail authority responsible for making decisions about the project.

"Owner's agent" means the person or firm designated by an owner to make decisions concerning the project.

"Per inmate" or "per bed" means for each general population bed.

"Piping" means pipes associated with heating, cooling, condensate, domestic water, gas, steam, sewer, storm drain, roof drain, and fire protection.

"Planning study" means a document providing the anticipated operating program, staffing, operating costs, building design, and cost for construction, expansion, or renovation of a local correctional facility that is used as the basis for a request for funding of project costs for reimbursement and initial determination of compliance with this chapter.

"PREA" means the Prison Rape Elimination Act (Public Law 108-79).

"Project" means new construction, renovation, or expansion of a regional or local jail correctional facility. This includes planning, design, and construction.

"Public" means all persons with the exception of professional visitors, such as legal, clergy, counselors, pretrial, probation, parole, and law enforcement, and others as authorized by the local correctional facility.

"Regional jail" means, for purposes of state reimbursement for construction costs, those jails that meet the criteria set forth in §§ 53.1-81, 53.1-82 and 53.1-95.2 of the Code of Virginia, and jail having at least three member localities that was created before February 1, 1993, or any jail construction project recommended for approval by the Board of Corrections as a regional jail prior to February 1, 1993. For the purposes of this term, "created" means localities having submitted resolutions of local governing bodies or cooperative agreements, and "cooperative agreements" means a formal contract between those jurisdictions participating in a regional jail that specifies their mutual financial and legal obligations relating to the ownership, administration, and maintenance of the jail.

"Renovation" means the alteration or other modification of an existing local correctional facility or piece of equipment for the purpose of modernizing or changing the use or capability of such local correctional facility or equipment. Renovation does not include work on or repair or replacement of any part of an existing local correctional facility or equipment, which may be generally associated with normal wear and tear or included in routine maintenance. Renovation renders the facility, item, or area in compliance with this chapter and superior to the original.

"Repair" means the correction of deficiencies in a local correctional facility or of equipment, which have either been damaged or worn by use but which can be economically returned to service without replacement.

"Replacement" means the construction of a local correctional facility in place of a like local correctional facility or the purchasing of like equipment to replace equipment that has been so damaged or has outlived its useful life that it cannot be economically renovated or repaired.

"Reviewing authority" means the representatives of the Department of Corrections or the Department of Criminal Justice Services responsible for reviewing required documents and attending required meetings and whose responsibility it is to interpret and determine compliance with this chapter.

"Sally port" means a secure vestibule constructed of secure walls, secure ceiling, and secure floor with two or more interlocking, secure doors. Fixtures within sally ports shall be maximum security.

"Secure," as relates to construction, means walls, floors, ceilings or roofs, doors, and windows are constructed in accordance with the secure construction requirements of this chapter.

"Secure area" means all spaces located within the secure perimeter. (See secure perimeter).

"Secure encapsulation" means protect against vandalism or damage with concrete, masonry, steel, or other approved secure construction meeting the requirements of this chapter.

"Secure enclosure" means secure walls, secure floors, and secure roof or secure ceiling surrounding a space or area.

"Security cap" means secure protection of the top of a room or space with concrete, sheet metal, or security ceiling as specified in this chapter to complete the secure encapsulation of the room or space.

"Secure perimeter" means the outer limits of a jail or lockup where walls, floor, roof, and ceiling, constructed in accordance with the requirements of this chapter, are used to prevent egress by inmates or ingress by unauthorized persons or contraband.

"Special purpose cells" means cells within the secure perimeter that include isolation, segregation, medical, protective custody, or other special use cells.

"State responsible inmates" means those inmates with felony sentences and sentenced to the custody of the Department of Corrections in accordance with § 53.1-20 of the Code of Virginia or other applicable state law.

"Supervision" means the act or process of performing responsible care over inmates.

"Support services areas" means all areas within the facility excluding inmate housing units. Also known as core or core space.

"Sustainable design and construction initiatives" means balancing economic, environmental, and equity considerations by reducing negative environmental impacts of site selection and development, optimizing the energy and water performance of the building and site, using environmentally sensitive building materials, and protecting the health and comfort of building occupants. Sustainable design and construction initiatives are benchmarked by third-party rating systems such as LEED or Green Globes or by documenting compliance with ASHRAE 189.1 or the International Green Construction Code.

"Tier" means the same as "cell tier."

"Value management analysis" or "VMA" means an analysis of facility design for the purpose of satisfying required function, and cost effectiveness, while providing the best quality and efficiency for the project.

"Value management team" means a team of people independent from the owner or the owner's A/E headed by a certified value specialist and a combination of the following disciplines based on phase and nature of the project: architecture, security, civil or site engineering, mechanical and electrical engineering, and cost estimator.

"Vehicular sally port" means a drive-in or drive-through made secure preferably by remotely controlled electrically operated interlocking doors for entrance and exit. It is normally located in close proximity to the facility intake.

6VAC15-81-30. (Reserved.)

6VAC15-81-40. Expansions or renovations.

Expansions or renovations to any facility shall conform to the requirements of this chapter for new construction without requiring the existing portion of the facility to comply with all requirements of this chapter. Exception: Those areas in an existing facility that are impacted by an expansion (such as the adding of bedspace impacting the need for more space in the kitchen, visiting, recreation, etc. if these services are not provided for in the expansion) may be required to be upgraded. The maximum upgrade required would be to provide additional space that would be required for the number of people for whom new bedspace is being built.

6VAC15-81-50. Localities with multiple facilities.

For localities with jail facilities having multiple facilities, compliance with this chapter shall be determined based on all facilities as a whole as well as the needs and functions of each individual facility.

6VAC15-81-60. Review and inspections.

Review of documents by the reviewing authority, fire official, local building official, and other officials or agencies shall be required. These reviews are performed at the preliminary and construction document stages. A final inspection shall be performed and documented in writing by all officials and agencies involved in the review process. The reviewing authority's review and inspections shall be limited to those areas within the scope of the project.

6VAC15-81-70. Conflict between this chapter and building codes or other standards.

In the event of a conflict between this chapter and building codes or other standards, the most restrictive requirement shall apply.

6VAC15-81-80. Compliance.

A. The facility shall be designed and constructed in accordance with this chapter. It shall be the responsibility of every person who performs work regulated by this chapter, including those involved with planning, design, construction, renovation, or installation of a structure or equipment, to comply with this chapter. Review or inspection by the reviewing authority does not relieve the owners or their agents from the requirement to comply with this chapter.

B. Definitions in this chapter are a part of the requirements of this chapter.

C. Any agreement entered into by the owner to design or construct a local correctional facility shall include the requirement to comply with this chapter. This compliance shall be noted on the construction documents.

6VAC15-81-90. Modifications.

A. Any request for modification shall be submitted, separate from the planning study, in the form of a request and resolution from the jail authority or board, city council or board of supervisors to the reviewing authority sufficiently in advance of the deadline for submission to the Board of Corrections to be reviewed, analyzed, and included in the desired Board of Corrections meeting agenda. The request for modification shall include a detailed analysis supported by documentation and historical data to justify the request.

B. A staff analysis shall be prepared by the reviewing authority for each modification request. The staff analysis shall include the section of this chapter being modified, an analysis to determine whether or not the modification meets the intent of the section being modified, an analysis of whether the modification has been granted in the past or has any ramifications that might affect current or future jail construction or security, and the analysis shall include a staff recommendation to the board.

C. Upon consideration, the board may grant modifications to any of the provisions of this chapter provided the spirit and intent of this chapter is observed and inmate, staff, and public welfare, safety, and security are not compromised. The board has the ultimate responsibility to grant modifications to this chapter and shall not be bound by the position of staff and shall also consider information provided by the locality or localities. The final decision of the board on any modification shall be recorded in board minutes.

Part II
Submission of a Community Based Corrections Plan

Article 1
General

6VAC15-81-100. Document submission schedule and method.

A. Prior to preparation of a community based corrections plan (CBCP) as required by § 53.1-82.1 of the Code of Virginia, any city or county or combination thereof intending to seek reimbursement for a jail project shall contact the Department of Corrections, Compliance, Certification, and Accreditation Unit to have a meeting to discuss the requirement of completing a CBCP.

B. All documents in this section shall be submitted to the department in accordance with the budgeting time schedule as outlined in § 53.1-82.3 of the Code of Virginia or the appropriation act.

C. Documents shall be as follows:

1. Needs assessment. Four paper copies and one electronic copy of the community based corrections plan, prepared in accordance with this article, shall be submitted to the Department of Corrections, Compliance, Certification, and Accreditation Unit. A needs assessment is not required for projects that do not increase bed capacity and for which the owner does not seek state reimbursement for construction, staffing, or operating cost.

2. Planning study. Three paper copies and one electronic copy of the planning study, prepared in accordance with this article, shall be submitted to Department of Corrections, Compliance, Certification, and Accreditation Unit.

3. Minor renovation project. Three paper copies and one electronic copy of minor renovation project information prepared in accordance with 6VAC15-81-280 and 6VAC15-81-290 shall be submitted to Department of Corrections, Compliance, Certification, and Accreditation Unit. A needs assessment is not required for minor renovation projects that do not increase capacity.

4. Modifications. Three paper copies and one electronic copy of minor renovation project information prepared in accordance with 6VAC15-81-280 and 6VAC15-81-290 shall be submitted to Department of Corrections, Compliance, Certification, and Accreditation Unit.

5. Resolution and cooperative service agreement. Two paper copies and one electronic copy of minor renovation project information prepared in accordance with 6VAC15-81-280 and 6VAC15-81-290 shall be submitted to Department of Corrections, Compliance, Certification, and Accreditation Unit.

An executed cooperative service agreement, where applicable, and resolution shall be submitted to the reviewing authority prior to board consideration of the project. The owner shall submit the following to the Department of Corrections, Compliance, Certification, and Accreditation Unit:

a. Single locality facility. An ordinance or resolution of the local governing body requesting reimbursement funding,

b. Multijurisdictional facility not qualifying for regional jail status reimbursement pursuant to § 53.1-81 of the Code of Virginia. A joint resolution of or individual resolutions from the local governing bodies requesting reimbursement funding.

c. Regional jail board or jail authority facility. Pursuant to § 53.1-81, a joint resolution of or individual resolutions from the governing bodies of the established regional jail board or a resolution from the regional jail authority requesting reimbursement funding and a cooperative service agreement detailing the financial and operational responsibilities of the participating jurisdictions or jail authority.

6. Financing method. If the project is being financed, detailed information on the financing and financing method shall be provided to the Treasury Board in accordance with its requirements.

7. The reviewing authority shall verify documentation has been received by required deadlines and are correct, and advise the locality of any errors or discrepancies in their submittal.

6VAC15-81-110. Community based corrections plan requirement.

An owner requesting reimbursement for new construction, expansion, or renovation, staffing, or operating cost of a jail project that results in a net increase of available beds shall prepare and submit for approval a community based corrections plan.

6VAC15-81-120. Local responsibility for community based corrections plan.

A. The community based corrections plan shall be developed by the owner or owners, or an agent of the owner or owners. Pursuant to § 9.1-180 of the Code of Virginia, the community criminal justice board (CCJB) shall review the findings and recommendations of the needs assessment component of the community based corrections plan.

B. Oversight and amendment by CCJB is limited to the following situations:

1. Where a multijurisdictional CCJB, established in accordance with the provisions of § 9.1-178 of the Code of Virginia, has membership of the governing bodies of jurisdictions not involved in the construction, expansion, or renovation of the regional jail project, a subcommittee shall be established comprised of the required members of the CCJB representing the participating jurisdictions and their governing bodies.

2. In those projects in which more than one locality is involved and each locality has a separate CCJB or the localities are members of different multijurisdictional CCJBs, a subcommittee shall be established comprised of the required members of the CCJB representing the participating jurisdictions and their governing bodies.

6VAC15-81-130. Community based corrections plan contents.

A community based corrections plan includes:

1. A needs assessment for projects increasing rated capacity by more than 24 beds or more than 40% of rated capacity, whichever is less per 6VAC16-81-40 through 6VAC15-81-90.

2. A planning study per 6VAC16-81-40 through 6VAC15-81-90.

6VAC15-81-140. Localities not operating a jail.

For a locality not currently operating a jail, the needs assessment portion of the community based corrections plan shall be based on how the locality is managing its current inmate population through utilization of other local correctional facilities and community based alternative programs and services. Localities requesting reimbursement for new single jurisdiction jail or regional jail construction must comply with current appropriation act language.

Article 2
Contents of the Community Based Corrections Plan

6VAC15-81-150. Needs assessment.

A. The needs assessment is an evaluation of trends and factors at the local or regional level affecting current and future facility needs, and the assessment of resources available to meet such needs that is used as the basis for a request for reimbursement of local correctional facility construction costs.

B. The needs assessment shall address each of the elements of 6VAC15-81-160 through 6VAC15-81-260.

6VAC15-81-160. Funding priority.

The needs assessment shall include a statement identifying which Board of Corrections funding priority or priorities the plan and jail project addresses, per 6VAC15-81-320.

6VAC15-81-170. Analysis of criminal justice and inmate population data.

A. The needs assessment shall include an analysis of criminal justice and inmate population data as required by this chapter.

B. In order to evaluate the impact of the various criminal justice components on the jail population, the following data shall be provided for each locality participating in the needs assessment for the most recent five calendar years.

1. A table and an analysis of annual trends for the total adult arrests for Part A and B offenses from the latest edition of "Crime in Virginia" published by the Virginia State Police.

2. A table and an analysis of annual trends fort total adult arrests currently defined as "On View," "Taken into Custody," and "Summonses" and a comparison of these totals to those presented in subdivision 1 of this subsection. This data is available from the Research Unit of the Virginia Department of Criminal Justice Services.

3. A table and an analysis of annual trends for process data from the Supreme Court of Virginia from the Magistrate Information System including the total number of:

a. Bonds.

b. Commitment orders - bail.

(1) Felony.

(a) Secured.

(b) Unsecured.

(c) Recognizance.

(d) Held without bail.

(e) Release by judicial officer to custody of responsible person or when accused is no longer intoxicated.

(2) Misdemeanor.

(a) Secured.

(b) Unsecured.

(c) Recognizance.

(d) Held without bail.

(e) Release by judicial officer to custody of responsible person or when accused is no longer intoxicated.

(3) Release orders.

4. A table and an analysis of annual trends for data from the State Compensation Board Local Inmate Data System (LIDS).

a. Total new "Pretrial Monthly Commitments" by month and by felony, and misdemeanor or ordinance violators for those awaiting trial. This report is available on the State Compensation Board website under "LIDS, the Forms Maintenance Menu" for individual jails or from any local pretrial services agency that currently serves the jail or jails in question.

b. Comparison and analysis of the total number of new "Pretrial Monthly Commitments" in subdivision 4 a of this subsection, with the total "Commitment Orders" in subdivision 3 b of this subsection.

c. A separate report of the total number of "Pretrial Commitments" in subdivision 4 a of this subsection above that were released for the following LIDS "Reason Release Codes":

(1) 19 – To bond.

(2) 49 – To pretrial service program.

d. Report of the total annual commitments "Serving Sentence" separately by misdemeanor and felony, for the following LIDS "Reason Confined Codes":

(1) 20 - Serving sentence.

(2) 29 - Weekend or nonconsecutive days.

(3) 26 - Work release.

e. Reports of the admissions in subdivision 4 d of this subsection, report the number released for the following LIDS "Release Reason":

(1) 16 - Time served.

(2) 33 - To Department of Corrections.

(3) 39 - Sentence served.

5. A table and an analysis of total average monthly adult ADP for the most recent 60 months by felony, misdemeanor, and ordinance violation categories for local responsible populations and for felony state responsible populations. Data is available from the State Compensation Board website under LIDS.

6. A table and an analysis of annual trends for identification of the following subpopulations separately:

a. The "overflow" population being held in another jail or jails.

b. The ADP help for:

(1) Federal authorities.

(2) Out-of-state authorities (non-state warrant).

(3) Other localities including payment agreements, courtesy holds for other localities, and exchange agreements. This does not include prisoners held in accordance with regional jail service agreements or jointly operated facilities.

(4) State responsible inmates held by agreement, jail contract bed or JCB or work release.

c. Localities currently without facilities can calculate the average daily population from total prisoner days reported for prisoners held for their locality by another jail or jails (use Federal Information Processing System Code in LIDS for specific locality or localities involved).

7. A table and an analysis of annual trends for total placements by felony and misdemeanor, where applicable, for the following services for each jurisdiction in the project served by the following agencies:

a. Agency.

(1) Pretrial service agency.

(2) Community based probation services agency.

(3) State adult probation and parole district office (probation cases only).

(4) Drug courts.

b. For pretrial and local community based probation services, the average daily caseload under supervision based on total supervision days.

c. For all other programs, the average of the total population under active supervision at the beginning and the end of the calendar or fiscal year.

d. For all programs and services:

(1) The total annual placements, where applicable, for misdemeanors and felony defendants and inmates.

(2) A description of each program including fiscal agent, administration and management, staffing, and annual budget or operating costs.

6VAC15-81-180. Assessment of existing resources.

A. The needs assessment shall include an assessment of existing resources, including existing local correctional facilities, any lockups or other community based facilities that reduce the demand on jail space needs, and all pretrial and post-disposition alternatives, programs, and services.

B. The information provided pursuant to subsection A of this section shall include a description of the existing jail or jails in local lockups and correctional facilities that impact the project including:

1. The date of construction and dates of subsequent renovations or expansions;

2. The current rated capacity as established by the Department of Corrections;

3. A table indicating the total number of housing units including cell blocks, dormitories, and other housing units used for general population inmates. The tables for existing facilities shall be set up similar to the example table in subdivision 4 of this subsection.

4. A table indicating the design capacity and the total number of beds for each of the housing areas. The description and calculation of the existing facility's needs shall be consistent for each facility. The tables for the existing facility shall be set up using the following examples:

Example table for subdivisions 3 and 4 of this subsection.

Titles of Regulations: 6VAC15-80. Standards for Planning, Design, Construction and Reimbursement of Local Correctional Facilities (repealing 6VAC15-80-10 through 6VAC15-80-1270).

6VAC15-81. Standards for Planning, Design, Construction, and Reimbursement of Local Correctional Facilities (adding 6VAC15-81-10 through 6VAC15-81-1480).

Statutory Authority: §§ 53.1-5, 53.1-80, and 53.1-82 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 11, 2017.

Agency Contact: Jim Bruce, Agency Regulatory Coordinator, Department of Corrections, Department of Corrections, PO Box 26963, Richmond, VA 23261-6963, telephone (804) 887-8215, or email james.bruce@vadoc.virginia.gov.

Basis: Sections 53.1-5, 53.1-80, 53.1-81, and 53.1-82 of the Code of Virginia authorize the Board of Corrections prescribe standards for the planning, design, construction, and reimbursement of local correctional facilities.

Purpose: Current 6VAC15-80 was originally issued in 1994, and since issuance there have been significant changes in the Code of Virginia, building and fire codes, and audit standards for the construction of local correctional facilities. Technological advances allow for changes in facility staff and management that impact the facility physical plant. Updating this chapter provides for improved facilities that preserve the health and enhance the safety of staff and inmates while ensuring that public funds are spent wisely to build safe, secure, and durable jail facilities.

Substance: The proposed regulation includes provisions that:

1. Limit value management analyses (VMA) that must currently be done for all building and renovation projects to only those projects that cost $10 million or more.

2. Require that armories in correctional facilities have exhaust systems.

3. Modify current requirements for prisoner intake areas.

4. Change the percentage of beds that must be dedicated to each security level.  

5. Add exceptions to climate control requirements so that warehouses, industrial spaces, and mechanical and electrical spaces will not have to be heated and air conditioned.

6. Change requirements for special purpose cells, such as isolation, medical, and segregation cells, so that localities can build 20% of these cells at a less than maximum security level (current standards allow 10% lower security cells). These changes will also allow localities to install flushing floor drains instead of toilets in cells designed for violent or self-destructive prisoners and build cuff slots in doors for enclosed showers in special purpose housing units.

7. Change recreational space requirements so that facilities must only have 10 square feet of recreational space for each inmate for a facility designed to accommodate up to 480 inmates rather than up to the currently required 500 inmate capacity.

8. Reduce the number of noncontact visiting spaces from one per every 12 inmates to one per every 20 inmates and allow up to 75% of noncontact visitation to be off-site (video) visitation.

9. Increase the minimum size of kitchen space from 10 square feet for each prisoner up to 100 prisoners of rated capacity and three square feet for each prisoner in the rated capacity over 100 to a minimum of 1,500 square feet and three additional square feet for each prisoner over 100 in the rated capacity. The board also proposes to require that facility kitchen areas include a staff dining or break room.

10. Require facilities with three or more stories to have at least two elevators with secure local control.

11. Require electronic sound monitoring systems that allow prisoners to notify staff of emergencies, intercoms at security doors, and video monitoring of blind spots in corridors, sally ports, building entrances, and building exteriors.

12. Require that there be at least one plumbing valve to shut off water supplies in each housing unit and additional shut-off valves for each special purpose and intake cell.

13. Require noise abatement material for housing, activity, and intake areas.

14. Prohibit magnetic locks as they are not secure during power outages and are generally less secure than other available alternatives.

15. Prohibit tank-type toilets.

Issues: The existing regulation is out of date and the promulgation of replacement chapter 6VAC15-81 is intended to update the current planning, design, construction, and reimbursement standards to comply with the Code of Virginia, current fire and building codes, audit standards, and current correctional practice. This regulation will improve public safety and provide for a safe environment for staff and offenders. Building a new jail facility is a rare opportunity in the career of local authorities; this chapter incorporates the experience from many projects to serve as an informative guide to make best use of public resources to build safe, secure, and durable facilities.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Corrections (Board) proposes to repeal its regulation that sets standards for constructing local correctional facilities and replace it with a regulation that updates standards to reflect changes in the Code of Virginia, uniform statewide building and fire codes and best building practices for correctional facilities.

Result of Analysis. Benefits likely outweigh costs for these proposed changes.

Estimated Economic Impact. The current regulation governing construction standards of local correctional facilities was promulgated in 1994 and modified in 2009. Since that time, there have been many changes to the Code of Virginia (COV), the uniform statewide building code (USBC) and fire code regulations and to best practice standards for correctional facilities. In order to bring this regulation into conformity with existing requirements in law and in other regulations, the Board now proposes to repeal the current regulation and replace it with a new regulation.

Many of the changes that the Board proposes for the new regulation do not change current building requirements as those requirements are set by either the COV or the USBC and fire code regulations. For instance, Americans with Disabilities Act (ADA) requirements for new construction and renovation of existing buildings are set in the USBC. The Board proposes to harmonize their construction standards with the USBC by providing for ADA accessible cells. Changes such as these that harmonize this regulation with other existing legal requirements will likely not cause any entities to incur any additional costs. Affected entities will benefit from these changes as they remove or change language that conflicts with current law and, therefore, might lead to confusion.

Many other changes that are proposed by the Board are meant to clarify regulatory requirements that may have been incomplete or confusing. For instance, current regulatory language that governs libraries services were written in 1994 and anticipates that such services would include a mobile book cart. Technological changes that allow prisoners to choose from all available books in a facility (rather than just being able to choose from the number of books that would fit on a cart) have made mobile book carts obsolete. The Board now proposes to replace language referencing mobile book carts with language that requires "alternative library services" for prisoners who cannot access a facility's library. Changes like this that are designed to update and clarify requirements will likely not cause any entity to incur costs. These changes will benefit interested parties as they make the regulation easier to understand.

The Board also proposes numerous substantive changes for the replacement regulation they are promulgating. Specifically, the Board proposes to:

1. Limit value management analyses (VMA)¹ that must currently be done for all building and renovation projects to only those projects that cost $10 million or more. The Board proposes this change because it has concluded that projects smaller than $10 million are unlikely to save enough money on account of the VMA to justify the cost. Board staff estimates that this change will save localities completing smaller projects between $50,000 and $100,000 because they will not have to pay for a VMA.

2. Require that armories in correctional facilities have exhaust systems. Board staff reports that the typical cost for an exhaust system to be installed in an armory is approximately $1,000. The costs for this change are likely outweighed by the benefit of increased safety that will accrue to correctional facility staff because the exhaust system will vent out any leaking or accidentally dispersed chemical agents (mainly, tear gas).

3. Modify current requirements for prisoner intake areas. Currently, facilities must have one intake bed for every 10 beds of rated prisoner capacity. The Board proposes to keep this ratio for the first 400 bed of design capacity but allow facilities with a rated capacity of greater than 400 beds to only have one intake bed for every 40 beds of rated capacity over the first 400 beds. This change will likely decrease the costs of building or renovating larger facilities although Board staff does not have an estimate for the magnitude of those cost savings.

4. Change the percentage of beds that must be dedicated to each security level. Currently, facilities are required to be 20% maximum security, 40% medium security and 40% minimum security. The Board proposes to change these ratios so that facilities are 30% maximum security, 40% medium security and 30% minimum security. Board staff reports that requiring more maximum security beds, which have larger cells than other security levels, will increase construction costs but that those costs will be partially or completely offset by another proposed change that allows slightly smaller medium security cells. This change will benefit localities as it allows them to house prisoners in more appropriate (and therefore safer) cells.

5. Add exceptions to climate control requirements so that warehouses, industrial spaces and mechanical and electrical spaces will not have to be heated and air conditioned. These exceptions will allow localities that are building or renovating correctional facilities some cost savings because they will not have to build these areas so that they are heated and cooled and will also not have to incur additional ongoing energy costs for heating and cooling these areas.

6. Change requirements for special purpose cells (isolation, medical and segregation cells) so that localities can build 20% of these cells at a less than maximum security level (current standards allow 10% lower security cells). These changes will also allow localities to install flushing floor drains instead of toilets in cells designed for violent or self-destructive prisoners and build cuff slots in doors for enclosed showers in special purpose housing units. Board staff reports that increasing the percentage of lower security special purpose cells will save localities some building costs. Other changes to special purpose cell requirements are expected to increase both prisoner and staff security.

7. Change recreational space requirements so that facilities must only have 10 square feet of recreational space for each inmate for which the facility is designed up to 480 inmates rather than up to the currently required 500 inmate capacity. Localities that are building or renovating larger facilities will likely see some costs saving from having to build and secure 200 fewer square feet of recreational area.

8. Reduce the number of non-contact visiting spaces (from one per every 12 inmates to one per every 20 inmates) and allow up to 75% of non-contact visitation to be off-site (video) visitation. Board staff reports that the costs of installing and maintaining video equipment will be more than offset by lower staff costs associated with not having to process visitors so that they do not bring in contraband and not having additional guards for contact visits. Changing visitation in this way may also increase staff and inmate security by reducing incidences of potentially dangerous contraband making its way into facilities.

9. Increase the minimum size of kitchen space from a minimum of 10 square feet for each prisoner up to 100 prisoners of rated capacity and three square feet for each prisoner in the rated capacity over 100 to a minimum of 1,500 square feet and three additional square feet for each prisoner over 100 in the rated capacity. The Board also proposes to require that facility kitchen areas include a staff dining or break room. Board staff reports that these changes will increase building costs but the additional kitchen area will allow facilities to better accommodate the multiple menus now required to meet religious, allergy and therapeutic dietary needs. Additionally, having a staff dining or break room will allow localities to better accommodate staff who are not allowed for safety reasons to eat at their workstations.

10. Require facilities with three or more stories to have at least two elevators with secure local control. Board staff reports that this will slightly increase construction/renovation costs for larger facilities but will also provide the benefit of greater operational flexibility and security.

11. Require electronic sound monitoring systems that allow prisoners to notify staff of emergencies, intercoms at security doors and video monitoring of blind spots in corridors, sallyports,² building entrances and building exteriors. Board staff reports that these requirements will increase cost but will allow these facilities to comply with the federal Prison Rape Elimination Act and will increase safety for both prisoners and staff.

12. Require that there be at least one plumbing valve to shut off water supplies in each housing unit and additional shut off valves for each special purpose and intake cell. Board staff reports that these changes will increase costs but will also facilitate contraband recovery and reduce nuisance flooding. These changes will also allow staff to limit the areas affected by necessary water cut offs which will reduce prisoner unrest that has the potential to put staff at risk.

13. Require noise abatement material for housing, activity and intake areas. Board staff reports that localities will have control over the type and quality of noise abatement material so the magnitude of costs will vary greatly from project to project. Staff also reports that this change is aimed at increasing security and decreasing the stress that noisy, echoing spaces can cause for both staff and prisoners.

14. Prohibit magnetic locks as they are not secure during power outages and are generally less secure than other available alternatives. Board staff reports that this change is not expected to increase costs for localities.

15. Finally, the Board proposes to prohibit tank-type toilets. Board staff reports that there is a negligible difference between the cost of tank-type toilets and the cost of tankless toilets but that the lids and various rods and levers inside tank-type toilets can be used as weapons. Banning this type of toilet will likely increase staff and prisoner safety.

Although Board staff did not have costs estimates for most of the substantive changes to this regulation, the benefits in increased safety and efficiency for facilities are large enough that they likely exceed those unquantified costs.

Businesses and Entities Affected. These proposed regulatory changes will affect localities that build or renovate local correctional facilities either separately or as part of a regional building effort. Currently, there are 75 local correctional facilities in the Commonwealth.

Localities Particularly Affected. Localities that build or renovate local correctional facilities will be affected by these proposed regulatory changes.

Projected Impact on Employment. These proposed regulatory changes are unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Real Estate Development Costs. Some of these proposed regulatory changes are likely to increase real estate development costs for building local correctional facilities and some of these proposed regulatory changes are likely to decrease real estate development costs for building local correctional facilities.

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. No small businesses will be adversely affected by these proposed regulatory changes.

Alternative Method that Minimizes Adverse Impact. No small businesses will be adversely affected by these proposed regulatory changes.

Adverse Impacts:

Businesses. No businesses will be adversely affected by these proposed regulatory changes.

Localities. Localities in the Commonwealth may see some cost increases for building or renovating local correctional facilities. Any cost increases must be weighed against expected long term cost savings that may occur as well as anticipated benefits in greater efficiency and enhanced prisoner and staff safety.

Other Entities. No other entities are likely to be adversely affected by these proposed changes.

________________________

¹ Value management analyses are studies done of proposed facility design for the purposes of ensuring that the design satisfies functionality requirements and is cost-effective. Such analyses also seek to ensure quality and efficiency for the project.

² A sallyport is a secure vestibule constructed of secure walls, a secure ceiling, and secure floor with two or more interlocking secure doors.

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

Summary:

The proposed regulatory action repeals the existing Standards for Planning, Design, Construction and Reimbursement of Local Correctional Facilities (6VAC15-80) and replaces it with a new regulation 6VAC15-81. The proposed new regulation updates standards to reflect (i) changes in the Code of Virginia and uniform building and fire codes and (ii) best practices for correctional facilities.

CHAPTER 81
STANDARDS FOR PLANNING, DESIGN, CONSTRUCTION, AND REIMBURSEMENT OF LOCAL CORRECTIONAL FACILITIES

6VAC15-81-10. (Reserved.)

6VAC15-81-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Acceptable" means those applicable standards or practices with which a registered professional architect, engineer, or other duly licensed or recognized authority must comply.

"Access openings" means panels or doors used for access into areas including ceilings, pipe chases, plumbing chases, or shafts.

"Accessible by inmates" means the same as "inmate accessible."

"ADA accessible" means in compliance with the Americans with Disabilities Act (42 USC § 12101 et seq.).

"ADP" means average daily population.

"A/E" means the architect or engineer and his associated firm hired by the owner for study, design, or construction of the jail project.

"Analysis" means a detailed examination of the local or regional criminal justice system and its elements in order to determine the impact these elements have had on the need for current and future jail space.

"Approved" means an item approved by the reviewing authority.

"Artificial light" means light other than natural light.

"ASTM" means the American Society for Testing and Materials, the most current edition. When ASTM is referenced, the reference is to the Standards in ASTM Standards on Detention and Correctional Facilities, unless otherwise specified. Testing for compliance with ASTM Standards shall be performed by an independent nationally recognized testing laboratory.

"Board" means the Virginia State Board of Corrections.

"Building code" means Virginia Uniform Statewide Building Code (13VAC5-63), the Virginia Industrialized Building Code (13VAC5-91), and the Virginia Statewide Fire Prevention Code (13VAC5-51).

"CCJB" means Community Criminal Justice Board.

"CCTV" means closed circuit television or electronic surveillance system.

"Ceilings" means overhead interior surface that covers the upper limit of an interior room or space.

"Cell" means a space, the size of which are specified in this chapter, enclosed by secure construction containing plumbing fixtures and usually a bunk in which an inmate is detained or sleeps. Cells can be single or multiple occupancy depending upon custody level.

"Cell tier" means levels of cells vertically stacked above one another within a housing unit.

"Central intake unit" means an area constructed to provide, at a minimum, space for intake, temporary holding, booking, court and juvenile (if approved for juveniles) holding, classification, and release functions.

"Classification unit" means a cell or unit utilized for short-term holding of inmates for classification purposes after intake or booking and prior to being assigned to general population or other housing.

"Community based corrections plan" or "CBCP" means a comprehensive assessment of an owner's correctional needs and how these needs will be met through submissions of a needs assessment and a planning study.

"Community custody" means inmates incarcerated by the judicial system and classified for involvement in local work forces; participating in work, education, and rehabilitation release; and weekend and nonconsecutive sentencing.

"Construction completion" means the construction of the building is considered complete when a certificate of occupancy or temporary certificate of occupancy is issued for the building to be occupied by inmates.

"Construction documents" means the detailed working drawings and project manual containing detailed specifications and other supporting documents as approved by the reviewing authority.

"Contact visiting" means a space where inmates and visitors at a minimum may pass papers to one another.

"Control room" means a space enclosed by secure walls, secure roof or secure ceiling, and secure floor from which a jail officer may supervise inmates and control security systems in a portion of the jail, such as locks, doors, etc.

"Control station" means a space not enclosed by security walls, roof or ceiling, and floor from which a jail officer may supervise inmates and control security systems in a portion of the jail, such as locks, doors, etc.

"Correctional facility" means the same as "local correctional facility."

"Dayroom" means a secure area contiguous to an inmate sleeping (cells or rooms) area, with controlled access from the inmate sleeping area, to which inmates may be admitted for daytime activities.

"Department" means the Department of Corrections.

"Design capacity" means the maximum number of general beds for which the facility is designed and constructed based on the space requirements in this chapter as established by the Board of Corrections.

"Direct supervision" means a specific style of management where correctional officers are stationed fulltime inside the dayroom rather than solely observing inmate activity from within secure control points. Within this concept, services are generally brought to the inmate rather than taking the inmate to the service.

"Direct visual observation" means direct line of sight by a correctional officer, not CCTV.

"Dormitory" means an area designed for accommodating five or more inmates and used to house minimum custody and community custody inmates.

"Encapsulation" means the same as "secure encapsulation."

"Expansion" means to add an area of new construction to an existing local correctional facility by constructing additional areas.

"Facility" means a jail or lockup including all associated buildings and site.

"50% completion" (of construction value) means the day the project reaches the 50% point between the issuance of a building construction permit and the issuance of the final certificate of occupancy.

"General population housing" means maximum, medium, minimum, and community custody housing. General population excludes special purpose cells and intake or booking.

"Glazing" means any infill material, usually transparent or translucent glass, polycarbonate or combination thereof, and related components, used in a framed assembly.

"Holding" means a space or room designed for temporary containment of detainees or inmates while awaiting actions such as transfer, transportation, release, etc. Holding of this nature usually does not exceed four hours.

 "Housing unit" means a group of single person cells, multi-occupancy cells, or group of such cells with a common dayroom, dormitory, intake, special purpose, or classification areas that provide accommodations for sleeping, approved personal effects, and personal hygiene.

"IMC" means intermediate metal conduit.

"Indirect supervision" means supervision method other than direct supervision.

"Inmate" means any person committed to a jail by a legal commitment document.

"Inmate accessible" means areas an inmate occupies or utilizes inside the secure perimeter, including all sally ports.

"Intake" means a cell, group of cells, and open seating within a jail designed to hold one or more persons while awaiting processing, booking, classification, or to the general housing units after booking. Intake holding time does not usually exceed 72 hours. Cells holding more than one person are frequently referred to as group holding.

"Interior partition" means a wall within the secure perimeter, which is not required to be a perimeter security wall or an interior security wall.

"Interior security walls" means walls within but not a part of a secure perimeter that are utilized to restrict movement within the secure area, including housing units, dormitories, corridors, inmate activity areas, intake area, kitchen, laundry, and program areas.

"Jail" means the same as "local correctional facility."

"LIDS" means LIDS-VACORIS, the Compensation Board's inmate data system.

"Life safety operations" means the function of certain electrical, mechanical, and other building equipment provided for the purpose of ensuring the life, health, and safety of building occupants in the case of an emergency situation.

"Light" means the same as "artificial or natural light."

"Local correctional facility" means any jail, jail farm, or other place used for the detention or incarceration of adult inmates, excluding a lockup, which is owned, maintained, or operated by, or under contract with, any political subdivision or combination of political subdivisions of the Commonwealth. This shall also include facilities operated by a private entity under contract with a regional jail authority under provision of § 53.1-71.1.

"Locality" means a county or city.

"Lockup" means a facility, separate from a jail facility, operated by or for a local government for detention of persons for a short period of time as stated in 6VAC15-40-10.

"Master control" means the principal secure room of the entire facility where the control of safety and security of the jail through electronic equipment for surveillance, communication, fire and smoke detection, and emergency functions. This room is enclosed by walls, roof or ceiling, floor assemblies meeting secure perimeter requirements as well as having opening protectives meeting ASTM Grade 1 requirements. This room includes control of the entrances to the jail through the secure perimeter and capability of control of ingress and egress to cells, dayrooms, corridors, and other spaces within the entire jail.

"Maximum custody inmates" means persons who cannot be allowed to mingle physically with other inmates without close supervision, normally because of assaultive and aggressive behavior or high escape risk.

"Medium custody inmates" means those persons who require a moderate level of staff supervision and secure accommodations against escape, but who can be allowed to participate in group activities.

"Mezzanine" means the same as "cell tier."

"Minimum custody inmates" means those inmates classified as not dangerous or likely to escape, but who are of sufficient concern to require a minimum level of supervision.

"Minor renovation project" means renovation project that does not result in an increase in beds and has an estimated cost of less than $1 million.

"Multiple occupancy cell" means a cell designed for two, three, or four inmates.

"Natural light" means light provided by sunlight as viewed from within a housing unit.

"Needs assessment" means an evaluation of trends and factors at the local or regional level affecting current and future facility needs, and the assessment of resources available to meet such needs. The needs assessment is used as the basis for a request for reimbursement of local correctional facility construction costs.

"New construction" means to build, expand, or replace a local correctional facility.

"Operating capacity" means the same as "design capacity."

"Owner" means the locality, localities, or jail authority responsible for making decisions about the project.

"Owner's agent" means the person or firm designated by an owner to make decisions concerning the project.

"Per inmate" or "per bed" means for each general population bed.

"Piping" means pipes associated with heating, cooling, condensate, domestic water, gas, steam, sewer, storm drain, roof drain, and fire protection.

"Planning study" means a document providing the anticipated operating program, staffing, operating costs, building design, and cost for construction, expansion, or renovation of a local correctional facility that is used as the basis for a request for funding of project costs for reimbursement and initial determination of compliance with this chapter.

"PREA" means the Prison Rape Elimination Act (Public Law 108-79).

"Project" means new construction, renovation, or expansion of a regional or local jail correctional facility. This includes planning, design, and construction.

"Public" means all persons with the exception of professional visitors, such as legal, clergy, counselors, pretrial, probation, parole, and law enforcement, and others as authorized by the local correctional facility.

"Regional jail" means, for purposes of state reimbursement for construction costs, those jails that meet the criteria set forth in §§ 53.1-81, 53.1-82 and 53.1-95.2 of the Code of Virginia, and jail having at least three member localities that was created before February 1, 1993, or any jail construction project recommended for approval by the Board of Corrections as a regional jail prior to February 1, 1993. For the purposes of this term, "created" means localities having submitted resolutions of local governing bodies or cooperative agreements, and "cooperative agreements" means a formal contract between those jurisdictions participating in a regional jail that specifies their mutual financial and legal obligations relating to the ownership, administration, and maintenance of the jail.

"Renovation" means the alteration or other modification of an existing local correctional facility or piece of equipment for the purpose of modernizing or changing the use or capability of such local correctional facility or equipment. Renovation does not include work on or repair or replacement of any part of an existing local correctional facility or equipment, which may be generally associated with normal wear and tear or included in routine maintenance. Renovation renders the facility, item, or area in compliance with this chapter and superior to the original.

"Repair" means the correction of deficiencies in a local correctional facility or of equipment, which have either been damaged or worn by use but which can be economically returned to service without replacement.

"Replacement" means the construction of a local correctional facility in place of a like local correctional facility or the purchasing of like equipment to replace equipment that has been so damaged or has outlived its useful life that it cannot be economically renovated or repaired.

"Reviewing authority" means the representatives of the Department of Corrections or the Department of Criminal Justice Services responsible for reviewing required documents and attending required meetings and whose responsibility it is to interpret and determine compliance with this chapter.

"Sally port" means a secure vestibule constructed of secure walls, secure ceiling, and secure floor with two or more interlocking, secure doors. Fixtures within sally ports shall be maximum security.

"Secure," as relates to construction, means walls, floors, ceilings or roofs, doors, and windows are constructed in accordance with the secure construction requirements of this chapter.

"Secure area" means all spaces located within the secure perimeter. (See secure perimeter).

"Secure encapsulation" means protect against vandalism or damage with concrete, masonry, steel, or other approved secure construction meeting the requirements of this chapter.

"Secure enclosure" means secure walls, secure floors, and secure roof or secure ceiling surrounding a space or area.

"Security cap" means secure protection of the top of a room or space with concrete, sheet metal, or security ceiling as specified in this chapter to complete the secure encapsulation of the room or space.

"Secure perimeter" means the outer limits of a jail or lockup where walls, floor, roof, and ceiling, constructed in accordance with the requirements of this chapter, are used to prevent egress by inmates or ingress by unauthorized persons or contraband.

"Special purpose cells" means cells within the secure perimeter that include isolation, segregation, medical, protective custody, or other special use cells.

"State responsible inmates" means those inmates with felony sentences and sentenced to the custody of the Department of Corrections in accordance with § 53.1-20 of the Code of Virginia or other applicable state law.

"Supervision" means the act or process of performing responsible care over inmates.

"Support services areas" means all areas within the facility excluding inmate housing units. Also known as core or core space.

"Sustainable design and construction initiatives" means balancing economic, environmental, and equity considerations by reducing negative environmental impacts of site selection and development, optimizing the energy and water performance of the building and site, using environmentally sensitive building materials, and protecting the health and comfort of building occupants. Sustainable design and construction initiatives are benchmarked by third-party rating systems such as LEED or Green Globes or by documenting compliance with ASHRAE 189.1 or the International Green Construction Code.

"Tier" means the same as "cell tier."

"Value management analysis" or "VMA" means an analysis of facility design for the purpose of satisfying required function, and cost effectiveness, while providing the best quality and efficiency for the project.

"Value management team" means a team of people independent from the owner or the owner's A/E headed by a certified value specialist and a combination of the following disciplines based on phase and nature of the project: architecture, security, civil or site engineering, mechanical and electrical engineering, and cost estimator.

"Vehicular sally port" means a drive-in or drive-through made secure preferably by remotely controlled electrically operated interlocking doors for entrance and exit. It is normally located in close proximity to the facility intake.

6VAC15-81-30. (Reserved.)

6VAC15-81-40. Expansions or renovations.

Expansions or renovations to any facility shall conform to the requirements of this chapter for new construction without requiring the existing portion of the facility to comply with all requirements of this chapter. Exception: Those areas in an existing facility that are impacted by an expansion (such as the adding of bedspace impacting the need for more space in the kitchen, visiting, recreation, etc. if these services are not provided for in the expansion) may be required to be upgraded. The maximum upgrade required would be to provide additional space that would be required for the number of people for whom new bedspace is being built.

6VAC15-81-50. Localities with multiple facilities.

For localities with jail facilities having multiple facilities, compliance with this chapter shall be determined based on all facilities as a whole as well as the needs and functions of each individual facility.

6VAC15-81-60. Review and inspections.

Review of documents by the reviewing authority, fire official, local building official, and other officials or agencies shall be required. These reviews are performed at the preliminary and construction document stages. A final inspection shall be performed and documented in writing by all officials and agencies involved in the review process. The reviewing authority's review and inspections shall be limited to those areas within the scope of the project.

6VAC15-81-70. Conflict between this chapter and building codes or other standards.

In the event of a conflict between this chapter and building codes or other standards, the most restrictive requirement shall apply.

6VAC15-81-80. Compliance.

A. The facility shall be designed and constructed in accordance with this chapter. It shall be the responsibility of every person who performs work regulated by this chapter, including those involved with planning, design, construction, renovation, or installation of a structure or equipment, to comply with this chapter. Review or inspection by the reviewing authority does not relieve the owners or their agents from the requirement to comply with this chapter.

B. Definitions in this chapter are a part of the requirements of this chapter.

C. Any agreement entered into by the owner to design or construct a local correctional facility shall include the requirement to comply with this chapter. This compliance shall be noted on the construction documents.

6VAC15-81-90. Modifications.

A. Any request for modification shall be submitted, separate from the planning study, in the form of a request and resolution from the jail authority or board, city council or board of supervisors to the reviewing authority sufficiently in advance of the deadline for submission to the Board of Corrections to be reviewed, analyzed, and included in the desired Board of Corrections meeting agenda. The request for modification shall include a detailed analysis supported by documentation and historical data to justify the request.

B. A staff analysis shall be prepared by the reviewing authority for each modification request. The staff analysis shall include the section of this chapter being modified, an analysis to determine whether or not the modification meets the intent of the section being modified, an analysis of whether the modification has been granted in the past or has any ramifications that might affect current or future jail construction or security, and the analysis shall include a staff recommendation to the board.

C. Upon consideration, the board may grant modifications to any of the provisions of this chapter provided the spirit and intent of this chapter is observed and inmate, staff, and public welfare, safety, and security are not compromised. The board has the ultimate responsibility to grant modifications to this chapter and shall not be bound by the position of staff and shall also consider information provided by the locality or localities. The final decision of the board on any modification shall be recorded in board minutes.

Part II
Submission of a Community Based Corrections Plan

Article 1
General

6VAC15-81-100. Document submission schedule and method.

A. Prior to preparation of a community based corrections plan (CBCP) as required by § 53.1-82.1 of the Code of Virginia, any city or county or combination thereof intending to seek reimbursement for a jail project shall contact the Department of Corrections, Compliance, Certification, and Accreditation Unit to have a meeting to discuss the requirement of completing a CBCP.

B. All documents in this section shall be submitted to the department in accordance with the budgeting time schedule as outlined in § 53.1-82.3 of the Code of Virginia or the appropriation act.

C. Documents shall be as follows:

1. Needs assessment. Four paper copies and one electronic copy of the community based corrections plan, prepared in accordance with this article, shall be submitted to the Department of Corrections, Compliance, Certification, and Accreditation Unit. A needs assessment is not required for projects that do not increase bed capacity and for which the owner does not seek state reimbursement for construction, staffing, or operating cost.

2. Planning study. Three paper copies and one electronic copy of the planning study, prepared in accordance with this article, shall be submitted to Department of Corrections, Compliance, Certification, and Accreditation Unit.

3. Minor renovation project. Three paper copies and one electronic copy of minor renovation project information prepared in accordance with 6VAC15-81-280 and 6VAC15-81-290 shall be submitted to Department of Corrections, Compliance, Certification, and Accreditation Unit. A needs assessment is not required for minor renovation projects that do not increase capacity.

4. Modifications. Three paper copies and one electronic copy of minor renovation project information prepared in accordance with 6VAC15-81-280 and 6VAC15-81-290 shall be submitted to Department of Corrections, Compliance, Certification, and Accreditation Unit.

5. Resolution and cooperative service agreement. Two paper copies and one electronic copy of minor renovation project information prepared in accordance with 6VAC15-81-280 and 6VAC15-81-290 shall be submitted to Department of Corrections, Compliance, Certification, and Accreditation Unit.

An executed cooperative service agreement, where applicable, and resolution shall be submitted to the reviewing authority prior to board consideration of the project. The owner shall submit the following to the Department of Corrections, Compliance, Certification, and Accreditation Unit:

a. Single locality facility. An ordinance or resolution of the local governing body requesting reimbursement funding,

b. Multijurisdictional facility not qualifying for regional jail status reimbursement pursuant to § 53.1-81 of the Code of Virginia. A joint resolution of or individual resolutions from the local governing bodies requesting reimbursement funding.

c. Regional jail board or jail authority facility. Pursuant to § 53.1-81, a joint resolution of or individual resolutions from the governing bodies of the established regional jail board or a resolution from the regional jail authority requesting reimbursement funding and a cooperative service agreement detailing the financial and operational responsibilities of the participating jurisdictions or jail authority.

6. Financing method. If the project is being financed, detailed information on the financing and financing method shall be provided to the Treasury Board in accordance with its requirements.

7. The reviewing authority shall verify documentation has been received by required deadlines and are correct, and advise the locality of any errors or discrepancies in their submittal.

6VAC15-81-110. Community based corrections plan requirement.

An owner requesting reimbursement for new construction, expansion, or renovation, staffing, or operating cost of a jail project that results in a net increase of available beds shall prepare and submit for approval a community based corrections plan.

6VAC15-81-120. Local responsibility for community based corrections plan.

A. The community based corrections plan shall be developed by the owner or owners, or an agent of the owner or owners. Pursuant to § 9.1-180 of the Code of Virginia, the community criminal justice board (CCJB) shall review the findings and recommendations of the needs assessment component of the community based corrections plan.

B. Oversight and amendment by CCJB is limited to the following situations:

1. Where a multijurisdictional CCJB, established in accordance with the provisions of § 9.1-178 of the Code of Virginia, has membership of the governing bodies of jurisdictions not involved in the construction, expansion, or renovation of the regional jail project, a subcommittee shall be established comprised of the required members of the CCJB representing the participating jurisdictions and their governing bodies.

2. In those projects in which more than one locality is involved and each locality has a separate CCJB or the localities are members of different multijurisdictional CCJBs, a subcommittee shall be established comprised of the required members of the CCJB representing the participating jurisdictions and their governing bodies.

6VAC15-81-130. Community based corrections plan contents.

A community based corrections plan includes:

1. A needs assessment for projects increasing rated capacity by more than 24 beds or more than 40% of rated capacity, whichever is less per 6VAC16-81-40 through 6VAC15-81-90.

2. A planning study per 6VAC16-81-40 through 6VAC15-81-90.

6VAC15-81-140. Localities not operating a jail.

For a locality not currently operating a jail, the needs assessment portion of the community based corrections plan shall be based on how the locality is managing its current inmate population through utilization of other local correctional facilities and community based alternative programs and services. Localities requesting reimbursement for new single jurisdiction jail or regional jail construction must comply with current appropriation act language.

Article 2
Contents of the Community Based Corrections Plan

6VAC15-81-150. Needs assessment.

A. The needs assessment is an evaluation of trends and factors at the local or regional level affecting current and future facility needs, and the assessment of resources available to meet such needs that is used as the basis for a request for reimbursement of local correctional facility construction costs.

B. The needs assessment shall address each of the elements of 6VAC15-81-160 through 6VAC15-81-260.

6VAC15-81-160. Funding priority.

The needs assessment shall include a statement identifying which Board of Corrections funding priority or priorities the plan and jail project addresses, per 6VAC15-81-320.

6VAC15-81-170. Analysis of criminal justice and inmate population data.

A. The needs assessment shall include an analysis of criminal justice and inmate population data as required by this chapter.

B. In order to evaluate the impact of the various criminal justice components on the jail population, the following data shall be provided for each locality participating in the needs assessment for the most recent five calendar years.

1. A table and an analysis of annual trends for the total adult arrests for Part A and B offenses from the latest edition of "Crime in Virginia" published by the Virginia State Police.

2. A table and an analysis of annual trends fort total adult arrests currently defined as "On View," "Taken into Custody," and "Summonses" and a comparison of these totals to those presented in subdivision 1 of this subsection. This data is available from the Research Unit of the Virginia Department of Criminal Justice Services.

3. A table and an analysis of annual trends for process data from the Supreme Court of Virginia from the Magistrate Information System including the total number of:

a. Bonds.

b. Commitment orders - bail.

(1) Felony.

(a) Secured.

(b) Unsecured.

(c) Recognizance.

(d) Held without bail.

(e) Release by judicial officer to custody of responsible person or when accused is no longer intoxicated.

(2) Misdemeanor.

(a) Secured.

(b) Unsecured.

(c) Recognizance.

(d) Held without bail.

(e) Release by judicial officer to custody of responsible person or when accused is no longer intoxicated.

(3) Release orders.

4. A table and an analysis of annual trends for data from the State Compensation Board Local Inmate Data System (LIDS).

a. Total new "Pretrial Monthly Commitments" by month and by felony, and misdemeanor or ordinance violators for those awaiting trial. This report is available on the State Compensation Board website under "LIDS, the Forms Maintenance Menu" for individual jails or from any local pretrial services agency that currently serves the jail or jails in question.

b. Comparison and analysis of the total number of new "Pretrial Monthly Commitments" in subdivision 4 a of this subsection, with the total "Commitment Orders" in subdivision 3 b of this subsection.

c. A separate report of the total number of "Pretrial Commitments" in subdivision 4 a of this subsection above that were released for the following LIDS "Reason Release Codes":

(1) 19 – To bond.

(2) 49 – To pretrial service program.

d. Report of the total annual commitments "Serving Sentence" separately by misdemeanor and felony, for the following LIDS "Reason Confined Codes":

(1) 20 - Serving sentence.

(2) 29 - Weekend or nonconsecutive days.

(3) 26 - Work release.

e. Reports of the admissions in subdivision 4 d of this subsection, report the number released for the following LIDS "Release Reason":

(1) 16 - Time served.

(2) 33 - To Department of Corrections.

(3) 39 - Sentence served.

5. A table and an analysis of total average monthly adult ADP for the most recent 60 months by felony, misdemeanor, and ordinance violation categories for local responsible populations and for felony state responsible populations. Data is available from the State Compensation Board website under LIDS.

6. A table and an analysis of annual trends for identification of the following subpopulations separately:

a. The "overflow" population being held in another jail or jails.

b. The ADP help for:

(1) Federal authorities.

(2) Out-of-state authorities (non-state warrant).

(3) Other localities including payment agreements, courtesy holds for other localities, and exchange agreements. This does not include prisoners held in accordance with regional jail service agreements or jointly operated facilities.

(4) State responsible inmates held by agreement, jail contract bed or JCB or work release.

c. Localities currently without facilities can calculate the average daily population from total prisoner days reported for prisoners held for their locality by another jail or jails (use Federal Information Processing System Code in LIDS for specific locality or localities involved).

7. A table and an analysis of annual trends for total placements by felony and misdemeanor, where applicable, for the following services for each jurisdiction in the project served by the following agencies:

a. Agency.

(1) Pretrial service agency.

(2) Community based probation services agency.

(3) State adult probation and parole district office (probation cases only).

(4) Drug courts.

b. For pretrial and local community based probation services, the average daily caseload under supervision based on total supervision days.

c. For all other programs, the average of the total population under active supervision at the beginning and the end of the calendar or fiscal year.

d. For all programs and services:

(1) The total annual placements, where applicable, for misdemeanors and felony defendants and inmates.

(2) A description of each program including fiscal agent, administration and management, staffing, and annual budget or operating costs.

6VAC15-81-180. Assessment of existing resources.

A. The needs assessment shall include an assessment of existing resources, including existing local correctional facilities, any lockups or other community based facilities that reduce the demand on jail space needs, and all pretrial and post-disposition alternatives, programs, and services.

B. The information provided pursuant to subsection A of this section shall include a description of the existing jail or jails in local lockups and correctional facilities that impact the project including:

1. The date of construction and dates of subsequent renovations or expansions;

2. The current rated capacity as established by the Department of Corrections;

3. A table indicating the total number of housing units including cell blocks, dormitories, and other housing units used for general population inmates. The tables for existing facilities shall be set up similar to the example table in subdivision 4 of this subsection.

4. A table indicating the design capacity and the total number of beds for each of the housing areas. The description and calculation of the existing facility's needs shall be consistent for each facility. The tables for the existing facility shall be set up using the following examples:

Example table for subdivisions 3 and 4 of this subsection.

Title of Regulation: 8VAC20-22. Licensure Regulations for School Personnel (amending 8VAC20-22-90).

Statutory Authority: § 22.1-298.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 12, 2017.

Effective Date: July 31, 2017.

Agency Contact: Patty Pitts, Assistant Superintendent for Teacher Education and Licensure, Department of Education, 101 North 14th Street, Richmond, VA 23219, telephone (804) 371-2522, or email patty.pitts@doe.virginia.gov.

Basis: The amendments to the Licensure Regulations for School Personnel are required to comply with Chapter 389 of the 2016 Acts of Assembly, which amended and reenacted § 22.1-298.1 of the Code of Virginia requiring the Board of Education to provide for the provisional license.

The board's overall regulatory authority may be found under § 22.1-16 of the Code of Virginia.

Purpose: Chapter 389 of the 2016 Acts of Assembly requires the Board of Education to provide for the issuance of a provisional license, valid for a period not to exceed three years, to any former member of the Armed Forces of the United States or the Virginia National Guard who has received an honorable discharge and has the appropriate level of experience or training but does not meet the requirements for a renewable license. The change in the regulations will allow veterans to apply directly to the Department of Education to determine their eligibility for a license. Virginia, as well as the nation, is experiencing shortages of teachers.  This regulatory action should increase the pool of individuals to teach in the Commonwealth.

Rationale for Using Fast-Track Rulemaking Process: The fast-track rulemaking process is for regulations expected to be noncontroversial. This revision is noncontroversial because the amendments are required by statute and allow veterans to apply for a provisional (veteran) license through an alternate route upon the recommendation of an employing school division or, if the veteran is not employed as a teacher, to seek a statement of his or her eligibility for a provisional (veteran) license.

Substance: The amendments establish a veterans' provisional license, which allows any former member of the Armed Forces of the United States or of the Virginia National Guard who has received an honorable discharge, to apply directly to the Department of Education and receive an evaluation or statement of eligibility for a license.

Issues: The advantage of the amendment is that it will allow any former member of the Armed Forces of the United States or the Virginia National Guard who has received an honorable discharge to apply directly to the Department of Education and receive an evaluation for a license. There are no disadvantages to the public, the agency, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 389 of the 2016 Virginia Acts of Assembly, the Board of Education (Board) proposes to establish an alternate route for veterans to obtain a provisional license to teach.

Result of Analysis. The benefits likely exceed the costs.

Estimated Economic Impact. The legislation and proposed regulation specify that in order to qualify for the veteran alternate route to provisional licensure, the individual must be a former member of the armed forces of the United States or the Virginia National Guard who has received an honorable discharge. The current regulation already includes a career switcher alternate route to provisional licensure. According to the Department of Education (DOE), other than requiring a military background to qualify, practically speaking the only difference between the existing career switcher alternate route and the proposed veteran alternate route is that veterans who are applying for the provisional license may submit an application packet directly to DOE to request an evaluation for a license. They do not need to wait until a Virginia school division submits the request to DOE. The Department would provide the veteran with a letter indicating their eligibility (if they are in fact eligible) that he or she could use in pursuit of a position at a school. Having the eligibility letter could help facilitate employment for veterans. The proposed addition of this route to teacher licensure for veterans may require a small additional amount of time for DOE employees to provide the evaluation, but that cost is likely outweighed by the potential benefit of easing the employment process for veterans.

Businesses and Entities Affected. The proposed amendments affect veterans considering teaching in Virginia and the 132 local school divisions in the Commonwealth.

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

Projected Impact on Employment. The proposed amendments may moderately increase the likelihood that veterans become teachers.

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

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

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. The proposed amendments do not affect small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis completed by the Department of Planning and Budget.

Summary:

Pursuant to Chapter 389 of the 2016 Acts of Assembly, the amendments provide for the issuance of a provisional license, valid for a period not to exceed three years, to any former member of the Armed Forces of the United States or the Virginia National Guard who has received an honorable discharge and has the appropriate level of experience or training but does not meet the requirements for a renewable license.

8VAC20-22-90. Alternate routes to licensure.

A. Career switcher alternate route to licensure for career professions. An alternate route is available to career switchers who seek teaching endorsements preK through grade 12 with the exception of special education.

1. An individual seeking a Provisional License through the career switcher program must meet the following prerequisite requirements:

a. An application process;

b. A baccalaureate degree from a regionally accredited college or university;

c. The completion of requirements for an endorsement in a teaching area or the equivalent through verifiable experience or academic study;

d. At least five years of full-time work experience or its equivalent; and

e. Virginia qualifying scores on the professional teacher's assessments as prescribed by the Board of Education.

2. The Provisional License is awarded at the end of Level I preparation. All components of the career switcher alternate route for career professions must be completed by the candidate.

3. The Level I requirements must be completed during the course of a single year and may be offered through a variety of delivery systems, including distance learning programs. If an employing agency recommends extending the Provisional License for a second year, the candidate will enter Level III of the program. Career switcher programs must be certified by the Virginia Department of Education.

a. Level I preparation. Intensive Level I preparation includes a minimum of 180 clock hours of instruction, including field experience. This phase includes, but is not limited to, curriculum and instruction, including technology, reading, and other specific course content relating to the Standards of Learning, differentiation of instruction, classroom/behavior classroom and behavior management, instructional design based on assessment data, and human growth and development.

b. Level II preparation during first year of employment.

(1) Candidate seeks employment in Virginia with the one-year Provisional License.

(2) Continued Level II preparation during the first year of employment with a minimum of five seminars that expand the intensive preparation requirements listed in subdivision 3 a of this subsection. The five seminars will include a minimum of 20 cumulative instructional hours. A variety of instructional delivery techniques will be utilized to implement the seminars.

(3) One year of successful, full-time teaching experience in a Virginia public or accredited nonpublic school under a one-year Provisional License. A trained mentor must be assigned to assist the candidate during the first year of employment. Responsibilities of the mentor include, but are not limited to, the following:

(a) Collaborate with the beginning teacher in the development and implementation of an individualized professional development plan;

(b) Observe, assess, coach, and provide opportunities for constructive feedback, including strategies for self-reflection;

(c) Share resources and materials;

(d) Share best instructional, assessment, and organizational practices; classroom and behavior management strategies; and techniques for promoting effective communication; and

(e) Provide general support and direction regarding school policies and procedures.

(4) Upon completion of Levels I and II of the career switcher alternate route to licensure program and submission of a recommendation from the Virginia educational employing agency, the candidate will be eligible to apply for a five-year, renewable license. Renewal requirements for the regular license will be subject to current regulations of the Board of Education.

c. Level III preparation, if required.

(1) Post preparation, if required, will be conducted by the Virginia employing educational agency to address the areas where improvement is needed as identified in the candidate's professional improvement plan; and

(2) Upon completion of Levels I, II, and III of the career switcher alternate route to licensure program and submission of a recommendation from the Virginia educational employing agency, the candidate will be eligible to receive a five-year renewable license.

4. Verification of program completion will be documented by the certified program provider and the division superintendent or designee.

5. Certified providers implementing a career switcher program may charge a fee for participation in the program.

B. An alternate route is available to individuals employed by an educational agency who seek teaching endorsements preK through grade 12. Individuals must complete the requirements for the regular, five-year license within the validity period of the provisional license.

1. An individual seeking a license through this alternate route must have met the following requirements:

a. Are Is entering the teaching field through the alternate route to licensure upon the recommendation of the Virginia employing educational agency;

b. Hold Holds a baccalaureate degree from a regionally accredited college or university with the exception of individuals seeking the Technical Professional License;

c. Have Has met requirements for the endorsement area; and

d. Need Needs to complete an allowable portion of professional studies and licensure requirements.

2. The professional studies requirements for the appropriate level of endorsement sought must be completed. A Virginia educational agency may submit to the Superintendent of Public Instruction for approval an alternate program to meet the professional studies requirements. The alternate program must include training (seminar, internship, coursework, etc.) in human growth and development, curriculum and instructional procedures (including technology), instructional design based on assessment data, classroom and behavior management, foundations of education and reading.

3. One year of successful, full-time teaching experience in the appropriate teaching area in a Virginia public or accredited nonpublic school must be completed. A fully licensed experienced teacher must be available in the school building to assist the beginning teacher employed through the alternate route.

C. Alternate route in special education. The Provisional License is a three-year nonrenewable teaching license issued to an individual employed as a special education teacher in a public school or a nonpublic special education school in Virginia who does not hold the appropriate special education endorsement. To be issued the Provisional License through this alternate route, an individual must:

1. Be employed by a Virginia public or nonpublic school as a special educator and have the recommendation of the employing educational agency;

2. Hold a baccalaureate degree from a regionally accredited college or university;

3. Have an assigned mentor endorsed in special education; and

4. Have a planned program of study in the assigned endorsement area, make progress toward meeting the endorsement requirements each of the three years of the license, and have completed coursework in the competencies of foundations for educating students with disabilities and an understanding and application of the legal aspects and regulatory requirements associated with identification, education, and evaluation of students with disabilities. A survey course integrating these competencies would satisfy this requirement. The Provisional License through this alternate route shall not be issued without the completion of these prerequisites.

D. Alternate programs at institutions of higher education or Virginia school divisions. Alternate programs developed by institutions of higher education (i) recognize the unique strengths of prospective teachers from nontraditional backgrounds and (ii) prepare these individuals to meet the same standards that are established for others who are granted a license through an alternate route.

E. Experiential learning. Individuals applying for an initial license through the alternate route as prescribed by the Board of Education must meet the following criteria to be eligible to request experiential learning credits in lieu of the coursework for the endorsement (teaching) content area:

1. Hold a baccalaureate degree from a regionally accredited college or university;

2. Have at least five years of documented full-time work experience that may include specialized training related to the endorsement sought; and

3. Have met the qualifying score on the content knowledge assessment prescribed by the Board of Education.

The criteria do not apply to teachers of special education and elementary education (preK-3 and preK-6).

F. An alternate route is available to former members of the Armed Forces of the United States or the Virginia National Guard who have received an honorable discharge and who are seeking a Provisional (Veteran) License. Individuals must complete the requirements for the five-year renewable license within the validity period of the Provisional (Veteran) License.

An individual seeking a Provisional License through the veteran alternate route must meet the following requirements:

1. Is entering the teaching field through the alternate route to licensure upon the recommendation of the Virginia employing educational agency. If the veteran is not employed, a statement of the individual's eligibility for a Provisional (Veteran) License will be provided;

2. Holds a baccalaureate degree from a regionally accredited college or university with the exception of individuals seeking the Technical Professional License; and

3. Has met the appropriate level of experience or training required for the teaching endorsement area. The veteran may meet the endorsement requirements by passing a rigorous academic subject test prescribed by the Board of Education, if applicable. This testing option does not apply to individuals who are seeking an early/primary preK-3 or elementary education preK-6 endorsement or who are seeking a technical Professional License, Vocational Evaluator License, Pupil Personnel Services License, School Manager License, or Division Superintendent License.

G. Every teacher seeking an initial license in the Commonwealth with an endorsement in the area of career and technical education shall have an industry certification credential in the area in which the teacher seeks endorsement. If a teacher seeking an initial license in the Commonwealth has not attained an industry certification credential in the area in which the teacher seeks endorsement, the board may, upon request of the employing school division or educational agency, issue the teacher a Provisional License to allow time for the teacher to attain such credential.

Title of Regulation: 12VAC5-490. Virginia Radiation Protection Regulations: Fee Schedule (amending 12VAC5-490-10, 12VAC5-490-20).

Statutory Authority: § 32.1-229.1 of the Code of Virginia.

Effective Date: July 12, 2017.

Agency Contact: Steve Harrison, Director, Division of Radiological Health, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-8151, FAX (804) 864-8155, or email steve.harrison@vdh.virginia.gov.

Summary:

The amendments raise the registration fee for x-ray machines inspected every three years and add three new fee categories for the annual registration and periodic inspection of nonmedical x-ray devices.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

12VAC5-490-10. Registration fees.

A. All operators or owners of diagnostic X-ray x-ray machines used in the healing arts and capable of producing radiation shall pay the following registration fee:

1. $50 for each machine and additional tube(s) that have a required annual inspection, collected annually; and

$50 2. $60 for each machine and additional tube(s) that have a required inspection every three years, collected every three years.

B. All operators or owners of therapeutic X-ray x-ray, particle accelerators, and teletherapy machines used in the healing arts capable of producing radiation shall pay the following annual registration fee:

1. $50 for each machine with a maximum beam energy of less than 500 KVp;

2. $50 for each machine with a maximum beam energy of 500 KVp or greater.

C. All operators or owners of baggage, cabinet or analytical, or industrial x-ray machines capable of producing radiation shall pay the following annual registration fee:

1. $20 for each machine used for baggage inspection;

2. $25 for each machine identified as cabinet or analytical; and

3. $50 for each machine used for industrial radiography.

D. Where the operator or owner of the aforementioned machines is a state agency or local government, that agency is exempt from the payment of the registration fee.

12VAC5-490-20. Inspection fees and inspection frequencies for x-ray machines.

The following table lists the fees that shall be charged for surveys requested by the registrant and performed by a Department of Health inspector, as well as the required inspection frequencies for each type of x-ray machine:

Type	Cost Per Tube	Inspection Frequency
General Radiographic (includes: Chiropractic and Special Purpose X-ray Systems)	$230	Annually
Fluoroscopic, C-arm Fluoroscopic	$230	Annually
Combination (General Purpose-Fluoroscopic)	$460	Annually
Dental Intraoral and Panographic	$90	Every 3 years
Veterinary	$160	Every 3 years
Podiatric	$90	Every 3 years
Cephalometric	$120	Every 3 years
Bone Densitometry	$90	Every 3 years
Combination (Dental Panographic and Cephalometric)	$210	Every 3 years
Shielding Review for Dental Facilities	$250	Initial/Prior to use
Shielding Review for Radiographic, Chiropractic, Veterinary, Fluoroscopic, or Podiatric Facilities	$450	Initial/Prior to use
Baggage X-ray Unit	$100	Every 5 years
Cabinet or Analytical X-ray Unit	$150	Every 3 years
Industrial Radiography X-ray Unit	$200	Annually

Title of Regulation: 12VAC30-20. Administration of Medical Assistance Services (adding 12VAC30-20-570).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: August 11, 2017.

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 § 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.

In addition, Chapter 694 of the 2016 Acts of Assembly created a new section of the Virginia Administrative Process Act that provides for a process by which appellants may petition an agency to reconsider its final case decision.

Purpose: Chapter 694 of the 2016 Acts of Assembly created a new section of the Virginia Administrative Process Act, § 2.2-4023.1 of the Code of Virginia, which provides for a process by which appellants may petition an agency to reconsider a final case decision made pursuant to § 2.2-4020 of the Code of Virginia. Chapter 694 further specifically authorizes the agency to promulgate regulations that specify the scope of that reconsideration review. DMAS promulgated an emergency regulation, and this proposed stage seeks to make those changes permanent. The regulation creates 12VAC30-20-570, which is needed to accomplish the goal of establishing and defining the scope of review for reconsiderations conducted in accordance with § 2.2-4023.1.

This proposed regulatory action is essential to protect the health, safety, and welfare of citizens by ensuring the integrity of the Department of Medical Assistance Services appeals process by ensuring that it is in accordance with the Code of Virginia so that individuals and providers may challenge health care determinations made by the state Medicaid agency.

Substance: Prior to the newly enacted § 2.2-4023.1, there was no process by which an appellant could petition the agency director to reconsider a final agency case decision made pursuant to § 2.2-4020. In § 2.2-4023.1, the General Assembly provided a procedural timeline for the reconsideration process and authorized the agency to enact emergency regulations to define the scope of the reconsideration review.

Both the emergency regulation and the current proposed regulation specify the scope of the reconsideration review, as authorized by § 2.2-4023.1. The proposed amendments provide that the scope of review is upon the record of the case decision made pursuant to § 2.2-4020. The proposed amendments also provide that reconsideration does not authorize the reopening of the formal administrative hearing or acceptance of evidence or testimony not part of the record of the case, consistent with 1st Stop Health Services v. DMAS, 63 Va. App. 266, 756 S.E.2d 183 (2014).

Issues: The advantages to the public include transparency and clarity with regard to the final agency decision process. The primary advantage of this regulation is that it will permit DMAS to comply with a legislative mandate. This regulation does not create any disadvantages to the public, the agency, or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed regulation will make permanent an emergency regulation adopting the reconsideration process for a final agency decision as laid out in Chapter 694 of the 2016 Acts of Assembly and specifying the scope of evidence that may be considered during that process.

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

Estimated Economic Impact. Chapter 694 of the 2016 Acts of Assembly¹ established a reconsideration process for a final agency decision and authorized promulgation of emergency regulations to specify the scope of evidence that may be considered during that process. The director of the Department of Medical Assistance Services promulgated an emergency regulation on December 6, 2016, adopting the reconsideration process by reference as laid out in the statute.² Establishment of the reconsideration process affords an additional chance for a petitioner to make its case before the director, and avoid having to resolve the issue in the circuit court. Thus, the reconsideration process has the benefit of potentially avoiding higher litigation costs for both the petitioner and the agency. However, a petitioner has a right to reconsideration process under the statute with or without this proposed change in regulatory language. Therefore, the main impact of this proposed change is to clarify that the reconsideration process established in the statute applies to final decisions of the Department of Medical Assistance Services.

In addition, the amended statute allowed and the emergency regulation specified that the scope of evidence while reconsidering a final appeal decision is limited to what is in the case record of the formal appeal. In other words, the director's decision shall be based on the testimony and other evidentiary documents submitted previously during the formal appeal. The proposed regulation specifically excludes from consideration any testimony or documents that were not part of the formal appeal case record. The purpose of this provision is to clarify that the establishment of a reconsideration process is not to allow a petitioner to reopen and reargue a case with new evidence. In general, such a rule is consistent with evidentiary rules applicable to reconsideration of judicial decisions where litigants are allowed only one bite at the apple.

The proposed change pertaining to the scope of review is consistent with a recent Virginia Court of Appeals decision³ where a provider was initially ordered retraction of overpayments after an audit due to improper documentation supporting the claims paid. During the administrative appeal of the audit, the provider used new evidence to show that although its payments lacked supporting evidence, it was not overpaid. The hearing officer recommended reversal of the order to retract payments, but the director did not reverse the order. The case was appealed to a circuit court. The circuit court affirmed the director's decision, which was also appealed. In the end, the Court of Appeals affirmed the director's decision and recognized that the director could not use the new evidence as the basis of her decision.

This proposed change is beneficial because it reduces uncertainty and provides guidance by clarifying that reconsideration does not authorize the reopening of the formal administrative hearing or acceptance of new evidence or testimony. Also, prohibition of consideration of new evidence after a final decision has been rendered would help bring finality to a dispute sooner and avoid potential delays and costs.

Businesses and Entities Affected. The proposed regulation will affect individuals or health care providers that file a petition for reconsideration of a final decision. Approximately 60 final agency decisions are issued each year. It is expected that only a subset of the decisions will be petitioned for reconsideration.

Localities Particularly Affected. The proposed regulation does not disproportionately affect particular localities.

Projected Impact on Employment. No significant impact on employment is expected.

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

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

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. The proposed regulation does not introduce any direct costs or other effects on small businesses.

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

Adverse Impacts:

Businesses. The proposed amendment does not have an adverse impact on non-small businesses.

Localities. The proposed amendment will not adversely affect localities.

Other Entities. The proposed amendment will not adversely affect other entities.

______________________________

¹ http://lis.virginia.gov/cgi-bin/legp604.exe?161+ful+CHAP0694

² See § 2.2-4023.1 of the Code of Virginia.

³ 1st Stop Health Services v. DMAS 63 Va. App. 266, 756 S.E.2d 183 (2014).

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 concurs with this analysis.

Summary:

Pursuant to Chapter 694 of the 2016 Acts of Assembly, the proposed regulation establishes a reconsideration process for a final agency decision and specifies the scope of testimony or documentary submissions that may be considered during that process.

12VAC30-20-570. Reconsideration of final agency decision.

A. Reconsiderations of a DMAS final appeal decision issued on a formal appeal conducted pursuant to § 2.2-4020 of the Code of Virginia shall be conducted in accordance with § 2.2-4023.1 of the Code of Virginia.

B. The DMAS director's review shall be made upon the case record of the formal appeal. Testimony or documentary submissions that were not part of the formal appeal case record prior to issuance of the final agency decision shall not be considered.

Titles of Regulations: 12VAC30-30. Groups Covered and Agencies Responsible for Eligibility Determination (amending 12VAC30-30-10, 12VAC30-30-20, 12VAC30-30-40; adding 12VAC30-30-5).

12VAC30-40. Eligibility Conditions and Requirements (amending 12VAC30-40-10, 12VAC30-40-90, 12VAC30-40-100, 12VAC30-40-150, 12VAC30-40-220, 12VAC30-40-280, 12VAC30-40-290; repealing 12VAC30-40-345).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 12, 2017.

Effective Date: July 27, 2017.

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 § 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.

The Code of Federal Regulations at 42 CFR 435.603 details the Affordable Care Act (ACA) requirement that DMAS implement the modified adjusted gross income (MAGI) methodology to determine the financial eligibility of certain groups of individuals for Medicaid. The amendments in this package implement the federal guidance as directed.

Purpose: The purpose of this action is to bring state regulations into line with federal rules and current Virginia practice. This action does not directly affect the health, safety, and welfare of citizens of the Commonwealth.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action is being promulgated as a fast-track rulemaking action as the changes are noncontroversial. The changes have been approved by the Centers for Medicare and Medicaid Services (CMS) and have been in place since mid-2014 as required by federal regulations. The current changes to the Virginia Administrative Code will comport state regulations with federal rules and current Virginia practice.

Substance: Prior to January 1, 2014, eligibility for Medicaid families and children groups was based on the rules of the old Aid to Families with Dependent Children (AFDC) program. This program ended in 1997 when it was replaced by Congress with block grants to the states. However, the Medicaid program continued to use those rules in determining eligibility for children younger than age 19 years, parent/caretaker relatives and pregnant women.

In addition, prior to January 1, 2014, there was no provision for covering former foster care children younger than age 26 years.

With the implementation of the use of MAGI rules for determining eligibility as required by the ACA, rules based on the old AFDC program can no longer be used. States are mandated to use MAGI rules in determining eligibility for those populations. States are also required to cover the group of former foster care children.

The Commonwealth has a mandate from CMS to use MAGI rules in determining eligibility as required by the ACA. Additionally, the Commonwealth has a mandate to cover former foster care children. There is no option except to use the new federal rules. DMAS submitted its MAGI State Plan changes to CMS, and they have been approved.

Issues: These changes create no disadvantages to the public, the agency, the Commonwealth, the regulated community, or the public. The advantages of these changes are that they will bring DMAS rules into compliance with federal requirements, which will allow DMAS to continue to collect federal matching funds.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. On behalf of the Board of Medical Assistance Services, the Director of the Department of Medical Assistance Services proposes to amend these regulations to reflect a change in Medicaid eligibility methodology mandated by the federal Affordable Care Act (ACA).

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

Estimated Economic Impact. Prior to January 1, 2014, eligibility for Medicaid Families and Children groups was based on the rules of the old Aid to Families with Dependent Children (AFDC) program. This program ended in 1997 when it was replaced by Congress with block grants to the states. However, the Medicaid program continued to use those rules in determining eligibility for children younger than the age 19, parent/caretaker relatives and pregnant women. In addition, prior to January 1, 2014, there was no provision for covering former foster care children younger than age 26.

Effective January 1, 2014, ACA required eligibility for health coverage under all health insurance affordability programs – including Medicaid -- to be based on a new Modified Adjusted Gross Income (MAGI) methodology. Calculating applicants' MAGI eligibility entails defining household composition and executing income-counting procedures based on Internal Revenue Service rules. These changes were required by the federal law to be made in State Plans for Medical Assistance.

These changes impact eligibility determinations for children younger than age 19, certain groups of children younger than age 21, pregnant women, and parent/caretaker relatives and therefore, require a change in current regulations. An additional change mandated by the ACA requires states to cover former foster care children between the ages of 18 and 26 who were receiving foster care and Medicaid on their 18th birthday and subsequently aged out of the program.

With the implementation of the use of MAGI rules for determining eligibility as required by the ACA, rules based on the old AFDC program can no longer be used. States are mandated to use MAGI rules in determining eligibility for those populations. States are also required to cover the group of former foster care children. The Commonwealth has a mandate from CMS to use MAGI rules in determining eligibility as required by the ACA. Additionally, the Commonwealth has a mandate to cover former foster care children. There is no option except to use the new federal rules. DMAS submitted its MAGI State Plan changes to CMS and they have been approved. Pursuant to the federal mandate, the adoption of the MAGI methodology has already been adopted into the State Plan and is in effect. Thus, the proposal to amend these regulations to reflect the federally mandated change in Medicaid eligibility methodology will have no impact beyond reducing the likelihood that readers of the regulations are misled as toward the methodology that is in effect.

Businesses and Entities Affected. The proposed amendments affect readers of these regulations who may have been misled as to the Medicaid eligibility methodology that is in effect.

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

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

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

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

Small Businesses:

Definition. Pursuant 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."

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

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts: 

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

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 modified adjusted gross income (MAGI) methodology. The agency concurs with this analysis.

Summary:

As required by federal law, the amendments establish that eligibility for health coverage under all health insurance affordability programs, including Medicaid, is based on the modified adjusted gross income methodology.

12VAC30-30-5. Definitions.

The follows words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Social Security Act (42 USC §§ 301 through 1397mm).

"MAGI" means modified adjusted gross income and is an eligibility methodology for how income is counted and how household composition and family size are determined. MAGI is based on federal tax rules for determining adjusted gross income.

"SSI" means supplemental security income.

"SSP" means state supplementary payment.

"Title IV-A" means Title IV, Part A of the Social Security Act, 42 USC §§ 601 through 619.

"Title IV-A agency" means the agency described in 42 USC § 602(a)(4).

"Title XIX" means Title XIX of the Social Security Act, 42 USC §§ 1396 through 1396w-5.

12VAC30-30-10. Mandatory coverage: categorically needy and other required special groups.

The Title IV-A agency or the Department of Medical Assistance Services Central Processing Unit determines eligibility for Title XIX services. The following groups shall be eligible for medical assistance as specified:

1. Recipients of AFDC.

a. The approved state AFDC plan includes:

(1) Families with an unemployed parent for the mandatory six-month period and an optional extension of 0 months.

(2) AFDC children age 18 who are full-time students in a secondary school or in the equivalent level of vocational or technical training.

b. The standards for AFDC payments are listed in 12VAC30-40-220.

2. Deemed recipients of AFDC.

a. Individuals denied a Title IV-A cash payment solely because the amount would be less than $10.

b. Effective October 1, 1990, participants in a work supplementation program under Title IV-A and any child or relative of such individual (or other individual living in the same household as such individuals) who would be eligible for AFDC if there were no work supplementation program, in accordance with § 482(e)(6) of the Act.

c. Individuals whose AFDC payments are reduced to zero by reason of recovery of overpayment of AFDC funds.

d. An assistance unit deemed to be receiving AFDC for a period of four calendar months because the family becomes ineligible for AFDC as a result of collection or increased collection of support and meets the requirements of § 406(h) of the Act.

e. Individuals deemed to be receiving AFDC who meet the requirements of § 473(b)(1) or (2) for whom an adoption of assistance agreement is in effect or foster care maintenance payments are being made under Title IV-E of the Act.

3. Effective October 1, 1990, qualified family members who would be eligible to receive AFDC under § 407 of the Act because the principal wage earner is unemployed.

4. Families terminated from AFDC solely because of earnings, hours of employment, or loss of earned income disregards entitled up to 12 months of extended benefits in accordance with § 1925 of the Act.

5. Individuals who are ineligible for AFDC solely because of eligibility requirements that are specifically prohibited under Medicaid. Included are:

a. Families denied AFDC solely because of income and resources deemed to be available from:

(1) Stepparents who are not legally liable for support of stepchildren under a state law of general applicability;

(2) Grandparents;

(3) Legal guardians; and

(4) Individual alien sponsors (who are not spouses of the individual or the individual's parent).

b. Families denied AFDC solely because of the involuntary inclusion of siblings who have income and resources of their own in the filing unit.

c. Families denied AFDC because the family transferred a resource without receiving adequate compensation.

6. Individuals who would be eligible for AFDC except for the increases in OASDI benefits under P.L. 92-336 (July 1, 1972), who were entitled to OASDI in August 1972 and who were receiving cash assistance in August 1972.

a. Includes persons who would have been eligible for cash assistance but had not applied in August 1972 (this group was included in the state's August 1972 plan).

b. Includes persons who would have been eligible for cash assistance in August 1972 if not in a medical institution or intermediate care facility (this group was included in this state's August 1972 plan).

7. Qualified pregnant women and children.

a. A pregnant woman whose pregnancy has been medically verified who:

(1) Would be eligible for an AFDC cash payment if the child had been born and was living with her;

(2) Is a member of a family that would be eligible for aid to families with dependent children of unemployed parents if the state had an AFDC-unemployed parents program; or

(3) Would be eligible for an AFDC cash payment on the basis of the income and resource requirements of the state's approved AFDC plan.

b. Children born after September 30, 1973 (specify optional earlier date), who are under age 19 and who would be eligible for an AFDC cash payment on the basis of the income and resource requirements of the state's approved AFDC plan.

12VAC30-40-280 and 12VAC30-40-290 describe the more liberal methods of treating income and resources under § 1902(r)(2) of the Act.

8. Pregnant women and infants under one year of age with family incomes up to 133% of the federal poverty level who are described in §§ 1902(a) (10)(A)(i)(IV) and 1902(l)(A) and (B) of the Act. The income level for this group is specified in 12VAC30-40-220.

9. Children:

a. Who have attained one year of age but have not attained six years of age, with family incomes at or below 133% of the federal poverty levels.

b. Born after September 30, 1983, who have attained six years of age but have not attained 19 years of age, with family incomes at or below 100% of the federal poverty levels.

Income levels for these groups are specified in 12VAC30-40-220.

10. Individuals other than qualified pregnant women and children under subdivision 7 of this section who are members of a family that would be receiving AFDC under § 407 of the Act if the state had not exercised the option under § 407(b)(2)(B)(i) of the Act to limit the number of months for which a family may receive AFDC.

11. a. A woman who, while pregnant, was eligible for, applied for, and receives Medicaid under the approved state plan on the day her pregnancy ends. The woman continues to be eligible, as though she were pregnant, for all pregnancy-related and postpartum medical assistance under the plan for a 60-day period (beginning on the last day of her pregnancy) and for any remaining days in the month in which the 60th day falls.

b. A pregnant women who would otherwise lose eligibility because of an increase in income (of the family in which she is a member) during the pregnancy or the postpartum period which extends through the end of the month in which the 60-day period (beginning on the last day of pregnancy) ends.

1. Parents and other caretaker relatives of dependent children with household income at or below a standard established by the state in 12VAC30-40-100 consistent with 42 CFR 435.110 and §§ 1902(a)(10)(A)(i)(l) and 1931(b) of the Social Security Act. Individuals qualifying under this eligibility group shall meet the following criteria:

a. Parents, other caretaker relatives (defined at 42 CFR 435.4) including pregnant women, or dependent children (defined at 42 CFR 435.4) younger than the age of 18 years. This group includes individuals who are parents or other caretaker relatives of children who are 18 years of age provided the children are full-time students in a secondary school or the equivalent level of vocational or technical training and are expected to complete such school or training before their 19th birthday.

b. Spouses of parents and other caretaker relatives shall include other relatives of the child based on blood (including those of half-blood), adoption, or marriage. Other relatives of a specified degree of the dependent child shall include any blood relative (including those of half-blood) and including (i) first cousins; (ii) nephews or nieces; (iii) persons of preceding generations as denoted by prefixes of grand, great, or great-great; (iv) stepbrother; (v) stepsister; (vi) a relative by adoption following entry of the interlocutory or final order, whichever is first; (vii) the same relatives by adoption as listed in this subdivision 1 b; and (viii) spouses of any persons named in this subdivision 1 b even after the marriage is terminated by death or divorce.

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

2. Women who are pregnant or postpartum with household income at or below a standard established by the Commonwealth in 12VAC30-40-100, consistent with 42CFR 435.116 and §§ 1902(a)(10)(A)(i)(III) and (IV), 1902(a)(10)(A)(ii)(I) and (IX), and 1931(b) of the Act. Individuals qualifying under this eligibility group shall be pregnant or postpartum as defined in 42 CFR 435.4.

a. A woman who, while pregnant, was eligible for, applied for, and received Medicaid under the approved state plan on the day her pregnancy ends. The woman continues to be eligible, as though she were pregnant, for all pregnancy-related and postpartum medical assistance under the plan for a 60-day period, beginning on the last day of her pregnancy, and for any remaining days in the month in which the 60th day falls.

b. A pregnant woman who would otherwise lose eligibility because of an increase in income of the family in which she is a member during the pregnancy or the postpartum period that extends through the end of the month in which the 60-day period, beginning on the last day of pregnancy, ends.

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

3. Infants and children younger than the age of 19 years with household income at or below standards based on this age group, consistent with 42 CFR 435.118 and §§ 1902(a)(10)(A)(i)(III), (IV) and (VIII); 1902(a)(10)(A)(ii)(IV) and (IX); and 1931(b) of the Act. Children qualifying under this eligibility group shall meet the following criteria:

a. They are younger than the age of 19 years; and

b. They have a household income at or below the standard established by the Commonwealth.

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

4. Former foster care children younger than the age of 26 years who are not otherwise mandatorily eligible in another Medicaid classification, who were on Medicaid and in foster care when they turned age 18 years, or who aged out of foster care. Individuals qualifying under this eligibility group shall meet the following criteria:

a. They shall be younger than the age of 26 years;

b. They shall not be otherwise eligible for and enrolled for mandatory coverage under the state plan; and

c. They were in foster care under the responsibility of any state or a federally recognized tribe and were enrolled in Medicaid under the state plan of that state when they turned age 18 years or at the time of aging out of the foster care program.

5. Families terminated from coverage under § 1931 of the Act solely because of earnings or hours of employment shall be entitled to up to 12 months of extended benefits in accordance with § 1925 of the Act.

12. 6. A child born to a woman who is eligible for and receiving Medicaid on the date of the child's birth. The child is deemed to have applied and been found eligible for Medicaid on the date of birth and remains eligible for one year from birth, as long as he remains a resident of the Commonwealth. A redetermination of eligibility must be completed on behalf of the deemed child at age one year and annually thereafter so long as he remains eligible.

13. 7. Aged, blind, and disabled individuals receiving cash assistance.

a. Individuals who meet more restrictive requirements for Medicaid than the SSI requirements. (This includes persons who qualify for benefits under § 1619(a) of the Act or who meet the eligibility requirements for SSI status under § 1619(b)(1) of the Act and who met the state's more restrictive requirements for Medicaid in the month before the month they qualified for SSI under § 1619(a) or met the requirements under § 1619(b)(1) of the Act. Medicaid eligibility for these individuals continues as long as they continue to meet the § 1619(a) eligibility standard or the requirements of § 1619(b) of the Act.)

b. These persons include the aged, the blind, and the disabled.

c. Protected SSI children (pursuant to § 1902(a)(10)(A)(i)(II) of the Act) (P.L. 105-33 § 4913). Children who meet the pre-welfare reform definition of childhood disability who lost their SSI coverage solely as a result of the change in the definition of childhood disability, and who also meet the more restrictive requirements for Medicaid than the SSI requirements.

d. The more restrictive categorical eligibility criteria are described below: (1) See in 12VAC30-30-40.

(2) Financial criteria are described in 12VAC30-40-10.

14. 8. Qualified severely impaired blind and disabled individuals under age 65 years who:

a. For the month preceding the first month of eligibility under the requirements of § 1905(q)(2) of the Act, received SSI, a state supplemental supplementary payment (SSP) under § 1616 of the Act or under § 212 of P.L. 93-66 or benefits under § 1619(a) of the Act and were eligible for Medicaid; or

b. For the month of June 1987, were considered to be receiving SSI under § 1619(b) of the Act and were eligible for Medicaid. These individuals must:

(1) Continue to meet the criteria for blindness or have the disabling physical or mental impairment under which the individual was found to be disabled;

(2) Except for earnings, continue to meet all nondisability-related requirements for eligibility for SSI benefits;

(3) Have unearned income in amounts that would not cause them to be ineligible for a payment under § 1611(b) of the Act;

(4) Be seriously inhibited by the lack of Medicaid coverage in their ability to continue to work or obtain employment; and

(5) Have earnings that are not sufficient to provide for himself or herself a reasonable equivalent of the Medicaid, SSI (including any federally administered SSP), or public funded attendant care services that would be available if he or she did have such earnings.

The state applies more restrictive eligibility requirements for Medicaid than under SSI and under 42 CFR 435.121. Individuals who qualify for benefits under § 1619(a) of the Act or individuals described above who meet the eligibility requirements for SSI benefits under § 1619(b)(1) of the Act and who met the state's more restrictive requirements in the month before the month they qualified for SSI under § 1619(a) or met the requirements of § 1619(b)(1) of the Act are covered. Eligibility for these individuals continues as long as they continue to qualify for benefits under § 1619(a) of the Act or meet the SSI requirements under § 1619(b)(1) of the Act.

15. 9. Except in states that apply more restrictive requirements for Medicaid than under SSI, blind or disabled individuals who:

a. Are at least 18 years of age; and

b. Lose SSI eligibility because they become entitled to Old Age, Survivor, and Disability Insurance (OASDI) child's benefits under § 202(d) of the Act or an increase in these benefits based on their disability. Medicaid eligibility for these individuals continues for as long as they would be eligible for SSI, absence their OASDI eligibility.

The state does not apply more restrictive income eligibility requirements than those under SSI.

16. 10. Except in states that apply more restrictive eligibility requirements for Medicaid than under SSI, individuals who are ineligible for SSI or optional state supplements (if the agency provides Medicaid under § 435.230 of the Act), because of requirements that do not apply under Title XIX of the Act.

17. 11. Individuals receiving mandatory state supplements.

18. 12. Individuals who in December 1973 were eligible for Medicaid as an essential spouse and who have continued, as spouse, to live with and be essential to the well-being of a recipient of cash assistance. The recipient with whom the essential spouse is living continues to meet the December 1973 eligibility requirements of the state's approved plan for OAA Old Age Assistance, AB Aid to the Blind, APTD Aid to the Permanently and Totally Disabled, or AABD Aid to the Aged, Blind, and Disabled and the spouse continues to meet the December 1973 requirements for have his or her needs included in computing the cash payment.

In December 1973, Medicaid coverage of the essential spouse was limited to: the aged;, the blind;, and the disabled.

19. 13. Institutionalized individuals who were eligible for Medicaid in December 1973 as inpatients of Title XIX medical institutions or residents of Title XIX intermediate care facilities, if, for each consecutive month after December 1973, they:

a. Continue to meet the December 1973 Medicaid State Plan eligibility requirements;

b. Remain institutionalized; and

c. Continue to need institutional care.

20. 14. Blind and disabled individuals who:

a. Meet all current requirements for Medicaid eligibility except the blindness or disability criteria;

b. Were eligible for Medicaid in December 1973 as blind or disabled; and

c. For each consecutive month after December 1973 continue to meet December 1973 eligibility criteria.

21. 15. Individuals who would be SSI/SSP eligible except for the increase in OASDI benefits under P.L. 92-336 (July 1, 1972), who were entitled to OASDI in August 1972, and who were receiving cash assistance in August 1972.

This includes persons who would have been eligible for cash assistance but had not applied in August 1972 (this group was included in this state's August 1972 plan), and persons who would have been eligible for cash assistance in August 1972 if not in a medical institution or intermediate care facility (this group was included in this state's August 1972 plan).

22. 16. Individuals who:

a. Are receiving OASDI and were receiving SSI/SSP but became ineligible for SSI/SSP after April 1977; and

b. Would still be eligible for SSI or SSP if cost-of-living increases in OASDI paid under § 215(i) of the Act received after the last month for which the individual was eligible for and received SSI/SSP and OASDI, concurrently, were deducted from income.

The state applies more restrictive eligibility requirements than those under SSI and the amount of increase that caused SSI/SSP ineligibility and subsequent increases are deducted when determining the amount of countable income for categorically needy eligibility.

23. 17. Disabled widows and widowers who would be eligible for SSI or SSP except for the increase in their OASDI benefits as a result of the elimination of the reduction factor required by § 134 of P.L. 98-21 and who are deemed, for purposes of Title XIX, to be SSI beneficiaries or SSP beneficiaries for individuals who would be eligible for SSP only, under § 1634(b) of the Act.

The state does not apply more restrictive income eligibility standards than those under SSI.

24. 18. Disabled widows, disabled widowers, and disabled unmarried divorced spouses who had been married to the insured individual for a period of at least 10 years before the divorce became effective, who have attained the age of 50, who are receiving Title II payments, and who because of the receipt of Title II income lost eligibility for SSI or SSP which they received in the month prior to the month in which they began to receive Title II payments, who would be eligible for SSI or SSP if the amount of the Title II benefit were not counted as income, and who are not entitled to Medicare Part A.

The state applies more restrictive eligibility requirements for its blind or disabled than those of the SSI program.

25. 19. Qualified Medicare beneficiaries:

a. Who are entitled to hospital insurance benefits under Medicare Part A (but not pursuant to an enrollment under § 1818 of the Act);

b. Whose income does not exceed 100% of the federal level; and

c. Whose resources do not exceed twice the maximum standard under SSI or, effective January 1, 2010, the resource limit set for the Medicare Part D Low Income Subsidy Program.

(Medical assistance for this group is limited to Medicare cost sharing as defined in item 3.2 of this plan.)

26. 20. Qualified disabled and working individuals:

a. Who are entitled to hospital insurance benefits under Medicare Part A under § 1818A of the Act;

b. Whose income does not exceed 200% of the federal poverty level;

c. Whose resources do not exceed twice the maximum standard under SSI; and

d. Who are not otherwise eligible for medical assistance under Title XIX of the Act.

(Medical assistance for this group is limited to Medicare Part A premiums under §§ 1818 and 1818A of the Act.)

27. 21. Specified low-income Medicare beneficiaries:

a. Who are entitled to hospital insurance benefits under Medicare Part A (but not pursuant to an enrollment under § 1818A of the Act);

b. Whose income for calendar years 1993 and 1994 exceeds the income level in subdivision 25 b of this section, but is less than 110% of the federal poverty level, and whose income for calendar years beginning 1995 is less than 120% of the federal poverty level; and

c. Whose resources do not exceed twice the maximum standard under SSI or, effective January 1, 2010, the resource limit set for the Medicare Part D Low Income Subsidy Program.

(Medical assistance for this group is limited to Medicare Part B premiums under § 1839 of the Act.)

28. 22. a. Each person to whom SSI benefits by reason of disability are not payable for any month solely by reason of clause (i) or (v) of § 1611(e)(3)(A) shall be treated, for purposes of Title XIX, as receiving SSI benefits for the month.

b. The state applies more restrictive eligibility standards than those under SSI. Individuals whose eligibility for SSI benefits are based solely on disability who are not payable for any months solely by reason of clause (i) or (v) of § 1611(e)(3)(A) and who continue to meet the more restrictive requirements for Medicaid eligibility under the state plan, are eligible for Medicaid as categorically needy.

12VAC30-30-20. Optional groups other than the medically needy.

The Title IV A IV-A agency determines eligibility for Title XIX services. The following groups are eligible:

1. Caretakers and pregnant women who meet the income and resource requirements of AFDC but who do not receive cash assistance.

2. 1. Individuals who would be eligible for AFDC, SSI or an optional state supplement as specified in 42 CFR 435.230, if they were not in a medical institution.

3. 2. A group or groups of individuals who would be eligible for Medicaid under the plan if they were in a nursing facility (NF) or an ICF/MR intermediate care facility for individuals with intellectual disabilities (ICF/IID), who but for the provision of home and community-based services under a waiver granted under 42 CFR Part 441, Subpart G would require institutionalization, and who will receive home and community-based services under the waiver. The group or groups covered are listed in the waiver request. This option is effective on the effective date of the state's § 1915(c) waiver under which this group is or these groups are covered. In the event an existing § 1915(c) waiver is amended to cover this group or these groups, this option is effective on the effective date of the amendment.

4. 3. Individuals who would be eligible for Medicaid under the plan if they were in a medical institution, who are terminally ill, and who receive hospice care in accordance with a voluntary election described in § 1905(o) of the Act.

5. 4. The state Commonwealth does not cover all individuals who are not described in § 1902(a)(10)(A)(i) of the Act, who meet the income and resource requirements of the AFDC state plan and who are under younger than the age of 21 years. The state Commonwealth does cover reasonable classifications of these individuals as follows:

a. Individuals for whom public agencies are assuming full or partial financial responsibility and who are:

(1) In foster homes (and are under younger than the age of 21 years).

(2) In private institutions (and are under younger than the age of 21 years).

(3) In addition to the group under subdivisions 5 4 a (1) and 4 a (2) of this section, individuals placed in foster homes or private institutions by private nonprofit agencies (and are under younger than the age of 21 years).

b. Individuals in adoptions subsidized in full or part by a public agency (who are under younger than the age of 21 years).

c. Individuals in NFs (who are under younger than the age of 21 years). NF services are provided under this plan.

d. In addition to the group under subdivision 5 4 c of this section, individuals in ICFs/MR ICF/IIDs (who are under younger than the age of 21 years).

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

6. 5. A child for whom there is in effect a state adoption assistance agreement (other than under Title IV-E of the Act), who, as determined by the state adoption agency, cannot be placed for adoption without medical assistance because the child has special care needs for medical or rehabilitative care, and who before execution of the agreement:

a. Was was eligible for Medicaid under the state's approved Medicaid plan; or

b. Would have been eligible for Medicaid if the standards and methodologies of the Title IV-E foster care program were applied rather than the AFDC standards and methodologies.

The state Commonwealth covers individuals under younger than the age of 21 years.

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

7. 6. Section 1902(f) states and SSI criteria states without agreements under §§ 1616 and 1634 of the Act. The following groups of individuals who receive a state supplementary payment under an approved optional state supplementary payment program that meets the following conditions. The supplement is:

a. Based on need and paid in cash on a regular basis.

b. Equal to the difference between the individual's countable income and the income standard used to determine eligibility for the supplement.

c. Available to all individuals in each classification and available on a statewide basis.

d. Paid to one or more of the following classifications of individuals:

(1) Aged individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(2) Blind individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(3) Disabled individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(4) Individuals receiving a state administered optional state supplement that meets the conditions specified in 42 CFR 435.230.

The supplement varies in income standard by political subdivisions according to cost-of-living differences.

The standards for optional state supplementary payments are listed in 12VAC30-40-250.

8. 7. Individuals who are in institutions for at least 30 consecutive days and who are eligible under a special income level. Eligibility begins on the first day of the 30-day period. These individuals meet the income standards specified in 12VAC30-40-220.

The state Commonwealth covers all individuals as described above in this subdivision.

9. 8. Individuals who are 65 years of age or older or who are disabled as determined under § 1614(a)(3) of the Act, whose income does not exceed the income level specified in 12VAC30-40-220 for a family of the same size, and whose resources do not exceed the maximum amount allowed under SSI.

10. 9. Individuals required to enroll in cost-effective employer-based group health plans remain eligible for a minimum enrollment period of one month.

11. Women 10. Individuals who have been screened for breast or cervical cancer under the Centers for Disease Control and Prevention Breast and Cervical Cancer Early Detection Program established under Title XV of the Public Health Service Act in accordance with § 1504 of the Public Health Service Act and need treatment for breast or cervical cancer, including a pre-cancerous condition of the breast or cervix. These women individuals are not otherwise covered under creditable coverage, as defined in § 2701(c) of the Public Health Services Act, are not eligible for Medicaid under any mandatory categorically needy eligibility group, and have not attained age 65.

12. 11. Individuals who may qualify for the Medicaid Buy-In program under § 1902(a)(10)(A)(ii)(XV) of the Social Security Act (Ticket to Work Act) if they meet the requirements for the 80% eligibility group described in 12VAC30-40-220, as well as the requirements described in 12VAC30-40-105 and 12VAC30-110-1500.

12VAC30-30-40. Reasonable classifications of individuals under younger than the age of 21, 20, 19, and or 18 years.

See The reasonable classifications of individuals younger than the age of 21, 20, 19, or 18 years are set out in subdivision 5 4 of 12VAC30-30-20. See and subdivision 5 of 12VAC30-30-30.

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 (12VAC30-40-20 through 12VAC30-40-80) and III (12VAC30-40-90 through 12VAC30-40-210) of this chapter) to receive services.

2. Meets the applicable nonfinancial eligibility conditions.

a. For the categorically needy:

(1) Except as specified under subdivisions 2 a (2) and 2 a (3) of this section, for AFDC-related Title IV-E individuals, meets covered under § 1902(a)(10)(A)(i)(1), meet the nonfinancial eligibility conditions of the AFDC Medicaid program.

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

(3) For financially eligible parent/caretaker relatives, 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), and 1931 of the Social Security Act (Act), meets meet 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 meet the nonfinancial criteria of § 1902(m) of the Act.

b. For the medically needy, meets meet 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 meet 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 meet the nonfinancial criteria of § 1905(s).

3. Is residing in the United States and: May receive Medicaid eligibility if otherwise eligible. The Commonwealth provides Medicaid to citizens and nationals of the United States and certain noncitizens consistent with requirements of 42 CFR 435.406, including during a reasonable opportunity period pending verification of their citizenship, national status, or satisfactory immigration status. The Commonwealth provides Medicaid eligibility to otherwise eligible individuals:

a. Is a citizen Who are citizens or national nationals of the United States;.

b. Is a Who are qualified alien noncitizens as defined under Public Law 104-193 who arrived in the United States prior to August 22, 1996; in § 431 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) (8 USC § 1641) or whose eligibility is required by § 402(b) of PRWORA (8 USC § 1612(b)) and certain qualified noncitizens whose eligibility is not prohibited by § 403 of PRWORA (8 USC § 1613); and

(1) The Commonwealth requires lawful permanent residents to have 40 qualifying work quarters under Title II of the Social Security Act;

(2) The Commonwealth limits eligibility to seven years for certain noncitizens, including those admitted to the United States as a:

(a) Refugee under § 207 of the Immigration and Nationality Act (INA) (8 USC § 1101 et seq.);

(b) Aslyee under § 208 of the INA;

(c) Deportee whose deportation is withheld under § 243(h) or 241(b)(3) of the INA;

(d) Cuban-Haitian entrant, as defined in § 501(e) of the Refugee Education Assistance Act of 1980;

(e) Amerasian; or

(f) Victim of a severe form of trafficking.

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; Who have declared themselves to be citizens or nationals of the United States, or any individual having satisfactory immigration status, during a reasonable opportunity period pending verification of their citizenship, nationality, or satisfactory immigration status consistent with requirements of §§ 1903(x), 1137(d), and 1902(ee) of the Act and 42 CFR 435.406, and 956.

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

e. Is an alien Who is a noncitizen who is a pregnant woman or who is a child under younger than the age of 19 years 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 noncitizen as defined in § 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996;

(2) An alien A noncitizen 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 A noncitizen 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 a noncitizen paroled for prosecution, for deferred inspection, or pending removal proceedings;

(4) An alien A noncitizen 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 Noncitizens 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 Public Law P.L. No. 101-649 as amended;

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

(f) Aliens Noncitizens currently in deferred action status; and

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

(5) A Noncitizens who are pending applicant applicants 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 younger than the age of 14 years who has had an application pending for at least 180 days;

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

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

4. Is a resident of the state Commonwealth, regardless of whether or not the individual maintains the residence permanently or maintains the residence as a fixed address. The state has open 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 intellectually disabled, 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.

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(l)(1)(A) of the Social Security Act (pregnant women and women in the 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.

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 noncitizens seeking medical assistance for the treatment of an emergency medical condition under § 1903(v)(2) of the Social Security Act (§ 1137(f)).

b. 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 noncitizens signing the declaration of satisfactory immigration status must also present and have verified documents establishing the claimed immigration status. Exception: Nonqualified aliens noncitizens seeking medical assistance for the treatment of an emergency medical condition under § 1903(v)(2).

8. Is not required to apply for AFDC public assistance cash 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. 9. Is required to apply for coverage under Medicare A, B and/or or D, or any combination of Medicaid A, B, and 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. 10. 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. 11. 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 years or who is disabled, as defined in § 1614 of the Social Security Act, is lawfully residing in the individual's home.

Part III
Financial Eligibility

Subpart Article 1
General

12VAC30-40-90. Income and resource levels and methods.

A. For individuals who are AFDC or AFDC-related medically needy or SSI recipients, the income and resource levels and methods for determining countable income and resources of the AFDC and SSI program apply, unless the plan provides for more restrictive levels and methods than SSI for SSI recipients under § 1902(f) of the Act, or more liberal methods under § 1902(r)(2) of the Act, as specified below in this section.

B. For individuals who are not AFDC or AFDC-related medically needy or SSI recipients in a non-section 1902(f) State state and those who are deemed to be cash assistance recipients, the financial eligibility requirements specified in this subpart article apply.

C. 12VAC30-40-100 specifies the methods for determining income for individuals evaluated using modified adjusted gross income (MAGI) methodology.

C. D. 12VAC30-40-220 specifies the income levels for mandatory and optional categorically needy groups of individuals, including individuals with incomes related to the Federal federal income poverty level--, that is pregnant women and 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 and aged and disabled individuals covered under § 1902(a)(10)(A)(ii)(X) of the Act--,and for mandatory groups of qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act.

D. E. 12VAC30-40-230 specifies the resource levels for mandatory and optional categorically needy poverty level related groups, and for medically needy groups.

E. F. 12VAC30-40-260 specifies the income levels for categorically needy aged, blind, and disabled persons who are covered under requirements more restrictive than SSI.

F. G. 12VAC30-40-240 specifies the methods for determining resource eligibility used by States states that have more restrictive methods than SSI, permitted under § 1902(f) of the Act.

G. H. 12VAC30-40-270 specifies the resource standards to be applied for categorically needy individuals in states that have elected to impose more restrictive eligibility requirements than SSI, permitted under § 1902(f) of the Act.

H. I. 12VAC30-40-280 specifies the methods for determining income eligibility used by States states that are more liberal than the methods of the cash assistance programs, permitted under § 1902(r)(2) of the Act.

I. J. 12VAC30-40-290 specifies the methods for determining resource eligibility used by States states that are more liberal than the methods of the cash assistance programs, permitted under § 1902(r)(2) of the Act.

Subpart Article 2
Income

12VAC30-40-100. Methods of determining income.

a. AFDC-related A. Families and Children Medically Needy individuals (except for poverty level related pregnant women, infants, and children).

(1) 1. In determining countable income for AFDC-related Families and Children Medically Needy individuals, the methods under the state's July 16, 1996, approved AFDC Aid to Families with Dependent Children plan and any more liberal methods described in 12VAC30-40-280 are used.

(2) 2. In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to children living with parents until the children become 21 years of age.

(3) 3. Agency continues to treat women eligible under the provisions of § 1902(a)(10) of the Act as eligible, without regard to any changes in income of the family of which she is a member, for the 60-day period after her pregnancy ends and any remaining days in the month in which the 60th day falls.

B. Individuals subject to the use of modified adjusted gross income (MAGI) methodology. In determining income eligibility for individuals subject to the use of MAGI-based methodologies, the following shall apply:

1. The Commonwealth shall apply MAGI-based methodologies as described in this subsection, and consistent with 42 CFR 435.603 and § 1902(e)(14) of the Act. Individuals subject to the use of MAGI-based income methodologies include:

a. Parents/caretaker relatives under §§ 1902(a)(10)(A)(i)(l) and 1931 of the Act.

b. Pregnant women under §§ 1902(a)(10)(A)(i)(l), (lll), (IV), (ii)(l), ((IV), (IX) and 1931 of the Act.

c. Children under the age of 19 years under §§ 1902(a)(10)(A)(i)(l), (lll), (IV), (VI), (VII), (ii)((IV), (IX) and 1931 of the Act.

d. Reasonable classifications of children younger than the age of 21 years under §§ 1902(a)(10)(A)(ii)(l) and (IV) of the Act.

e. Individuals younger than the age of 21 years who are under a state adoption assistance agreement under § 1902(a)(10)(A)(ii)(VIII) of the Act.

2. In the case of determining the ongoing eligibility for individuals determined eligible for Medicaid on or before December 31, 2013, MAGI-based income methodologies shall not be applied until March 31, 2014, or the next regularly scheduled renewal of eligibility, whichever is later, if the applications of such methods should result in determination of ineligibility prior to such date.

C. In determining family size for the eligibility determination of a pregnant woman, the pregnant woman shall be counted as herself plus each of the children she is expected to deliver. In determining family size during the eligibility determination of the other individuals in a household that includes a pregnant woman, the pregnant woman shall be counted as just herself.

D. Financial eligibility shall be determined consistent with the following provisions:

1. Financial eligibility shall be based on current monthly income and family size when determining eligibility for new applicants.

2. Financial eligibility shall be based on current monthly household income and family size when determining eligibility for currently enrolled individuals.

3. Household income shall be the sum of the MAGI-based income of every individual included in the individual's household except as provided at 42 CFR 435.603(d)(2) through 42 CFR 435.603(d)(4).

4. An amount equivalent to five percentage points of the federal poverty level for the applicable family size shall be deducted, in determining eligibility for Medicaid, from the household income in accordance with 42 CFR 435.603(d).

5. The age used for children with respect to 42 CFR 435.603(f)(3)(iv) shall be 19 years of age.

b. E. Aged individuals. In determining countable income for aged individuals, including aged individuals with incomes up to the federal poverty level described in section § 1902(m)(1) of the Act, the following methods are used.

(1) 1. The methods of the SSI program and/or, any more liberal methods described in 12VAC30-40-280, or both apply.

(2) 2. For optional state supplement recipients in § 1902(f) states and SSI criteria states without § 1616 or § 1634 agreements, SSI methods and/or, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

(3) 3. In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses.

c. F. Blind individuals. In determining countable income for blind individuals, only the methods of the SSI program and/or, any more liberal methods described in 12VAC30-40-280, or both apply.

For optional state supplement recipients in § 1902(f) states and SSI criteria states without § 1616 or § 1634 agreements, the SSI methods and/or, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses and the income of parents as available to children living with parents until the children become 21 years of age.

d. G. Disabled individuals. In determining countable income of disabled individuals, including disabled individuals with incomes up to the federal poverty level described in § 1902(m) of the Act, the methods of the SSI program and/or, any more liberal methods described in 12VAC30-40-280, or both apply.

For optional state supplement recipients in § 1902(f) of the Act states and SSI criteria states without § 1616 or § 1634 agreements, the SSI methods and/or, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses and the income of parents as available to children living with parents until the children become 21 years of age.

e. Poverty level pregnant women, infants, and children. For pregnant women and infants or children covered under the provisions of § 1902(a)(10)(A)(i)(IV), (VI) and (VII), and § 1902(a)(10)(A)(ii)(IX) of the Act:

(1) The methods of the state's approved AFDC plan are used in determining countable income.

(2) In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses and the income of parents as available to children living with parents until the children become 21.

(3) The agency continues to treat women eligible under the provisions of § 1902(a)(10) of the Act as eligible, without regard to any changes in income of the family of which she is a member, for the 60-day period after her pregnancy ends and any remaining days in the month in which the 60th day falls.

f. H. Qualified Medicare beneficiaries. In determining countable income for qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act, the methods of the SSI program and/or, more liberal methods described in 12VAC30-40-280, or both are used.

If an individual receives a Title II benefit, any amounts attributable to the most recent increase in the monthly insurance benefit as a result of a Title II COLA is not counted as income during a "transition period" beginning with January, when the Title II benefit for December is received, and ending with the last day of the month following the month of publication of the revised annual federal poverty level.

For individuals with Title II income, the revised poverty levels are not effective until the first day of the month following the end of the transition period.

For individuals not receiving Title II income, the revised poverty levels are effective no later than the date of publication.

g. I. Qualified disabled and working individuals. In determining countable income for qualified disabled and working individuals covered under § 1902(a)(10)(E)(ii) of the Act, the methods of the SSI program are used.

12VAC30-40-150. Resource standard; categorically needy.

a. A. Section 1902(f) States states (except as specified under items c. and d. below) subsections C and D of this section) for aged, blind and disabled individuals: same as SSI resource standards.

The resource standards for other individuals are the same as those in the related cash assistance program.

b. B. Non-1902(f) States states (except as specified under items c. and d. below) subsections C and D of this section).

1. The resource standards are the same as those in the related cash assistance program.

2. 12VAC30-40-270 specifies for 1902(f) States states the categorically needy resource levels for all covered categorically needy groups.

c. C. The agency does not apply a resource standard for pregnant women and or infants covered under the provisions of section §§ 1902(a)(10)(A)(i)(IV) and 1902(a)(10)(A)(ii)(IX) of the Act.

d. D. The agency does not apply a resource standard for parent/caretaker relatives or children covered under the provisions of § 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(l), or 1931 of the Act.

e. E. For aged and disabled individuals described in § 1902(m)(1) of the Act who are covered under § 1902(a)(10)(A)(ii)(X) of the Act, 12VAC30-40-230 specifies the resource levels for these individuals.

Part IV
Eligibility Requirements

12VAC30-40-220. Income eligibility levels.

A. Mandatory Categorically Needy

1. AFDC-related groups other than poverty level pregnant women and infants.

Family Size	Need Standard	Payment Standard	Maximum Payment Amounts
	See Table 1	See Table 2

 

STANDARDS OF ASSISTANCE (Increased annually by the increase in the Consumer Price Index)
GROUP I
Size of Assistance Unit	Table 1 (100%)	Table 2 (90%)
1	$151.11	$135.58
2	237.01	214.24
3	305.32	274.27
4	370.53	333.27
5	436.77	393.30
6	489.55	441.94
7	553.72	498.87
8	623.07	559.93
9	679.99	611.68
10	743.13	669.64
Each person above 10	63.13	57.96
MAXIMUM REIMBURSABLE PAYMENT $403

 

GROUP II
Size of Assistance Unit	Table 1 (100%)	Table 2 (90%)
1	$180.09	$162.49
2	265.99	239.08
3	333.27	301.18
4	399.51	359.14
5	472.99	423.35
6	526.81	474.03
7	589.95	529.92
8	658.26	592.02
9	716.22	644.80
10	780.39	701.73
Each person above 10	63.13	57.96
MAXIMUM REIMBURSABLE PAYMENT $435

 

GROUP III
Size of Assistance Unit	Table 1 (100%)	Table 2 (90%)
1	$251.50	$227.70
2	338.44	304.29
3	406.75	366.39
4	472.99	424.35
5	560.97	505.08
6	613.75	552.69
7	677.92	610.65
8	745.23	672.75
9	806.26	725.53
10	868.33	781.42
Each person above 10	63.13	57.96
MAXIMUM REIMBURSABLE PAYMENT $518

A. 1. Groups I, II, and III income limits are set forth in this subdivision 1.

Group I
Size of assistance unit	Monthly	Yearly
1	$239	$2,868
2	364	4,368
3	464	5,568
4	563	6,756
5	663	7,956
6	748	8,976
7	844	10,128
8	945	11,340
Each additional person	98	1,176

 

Group II
Size of assistance unit	Monthly	Yearly
1	$313	$3,756
2	449	5,388
3	565	6,780
4	675	8,100
5	794	9,528
6	895	10,740
7	1,002	12,024
8	1,119	13,428
Each additional person	111	1,332

 

Group III
Size of assistance unit	Monthly	Yearly
1	$472	5,664
2	633	7,596
3	774	9,288
4	909	10,908
5	1,074	12,888
6	1,195	14,340
7	1,330	15,960
8	1,471	17,652
Each additional person	135	1,620

2. Pregnant women and infants under § 1902(a)(10)(i)(IV) of the Act:. Effective April 1, 1990, January 1, 2014, based on 133% 143% of the official federal income poverty level.

3. Children under § 1902(a)(10)(i)(VI) of the Act (children who have attained age 1 one year but have not attained age 6) six years), the income eligibility level is 133% 143% of the federal poverty level (as revised annually in the Federal Register) for the size family involved.

4. For children under § 1902(a)(10)(i)(VII) of the Act (children who were born after September 30, 1983, and have attained age 6 six years but have not attained age 19 years), the income eligibility level is 100% 143% of the federal poverty level (as revised annually in the Federal Register) for the size family involved.

B. Treatment of cost of living adjustment (COLA) for groups with income related to federal poverty level.

1. If an individual receives a Title II benefit, any amount attributable to the most recent increase in the monthly insurance benefit as a result of a Title II COLA is not counted as income during a "transition period" beginning with January, when the Title II benefit for December is received, and ending with the last day of the month following the month of publication of the revised annual federal poverty level.

2. For individuals with Title II income, the revised poverty levels are not effective until the first day of the month following the end of the transition period.

3. For individuals not receiving Title II income, the revised poverty levels are effective no later than the beginning of the month following the date of publication. C. Qualified Medicare beneficiaries with incomes related to federal poverty level.

The levels for determining income eligibility for groups of qualified Medicare beneficiaries under the provisions of § 1905(p)(2)(A) of the Act are as follows:

1. Section 1902(f) states, which as of January 1, 1987, used income standards more restrictive than SSI., (VA Virginia did not apply a more restrictive income standard as of January 1, 1987.)

Based on the following percentage of the official federal income poverty level:

Effective Jan. January 1, 1989: 85%

Effective Jan. January 1, 1990: 90% (no more than 100)

Effective Jan. January 1, 1991: 100% (no more than 100)

Effective Jan. January 1, 1992: 100%

D. Aged and disabled individuals described in § 1902(m)(1) of the Act; Level for determining income eligibility for aged and disabled persons described in § 1902(m)(1) of the Act is 80% of the official federal income poverty level (as revised annually in the Federal Register) for the size family involved.

E. Income levels—for medically needy. (Increased annually the increase in the Consumer Price Index but no higher than the level permitted to claim federal financial participation.)

1. The following income levels are applicable to all groups, urban and rural.

2. The agency has methods for excluding from its claim for FFP federal financial participation payments made on behalf of individuals whose income exceeds these limits.

 

Titles of Regulations: 12VAC30-30. Groups Covered and Agencies Responsible for Eligibility Determination (amending 12VAC30-30-10, 12VAC30-30-20, 12VAC30-30-40; adding 12VAC30-30-5).

12VAC30-40. Eligibility Conditions and Requirements (amending 12VAC30-40-10, 12VAC30-40-90, 12VAC30-40-100, 12VAC30-40-150, 12VAC30-40-220, 12VAC30-40-280, 12VAC30-40-290; repealing 12VAC30-40-345).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 12, 2017.

Effective Date: July 27, 2017.

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 § 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.

The Code of Federal Regulations at 42 CFR 435.603 details the Affordable Care Act (ACA) requirement that DMAS implement the modified adjusted gross income (MAGI) methodology to determine the financial eligibility of certain groups of individuals for Medicaid. The amendments in this package implement the federal guidance as directed.

Purpose: The purpose of this action is to bring state regulations into line with federal rules and current Virginia practice. This action does not directly affect the health, safety, and welfare of citizens of the Commonwealth.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action is being promulgated as a fast-track rulemaking action as the changes are noncontroversial. The changes have been approved by the Centers for Medicare and Medicaid Services (CMS) and have been in place since mid-2014 as required by federal regulations. The current changes to the Virginia Administrative Code will comport state regulations with federal rules and current Virginia practice.

Substance: Prior to January 1, 2014, eligibility for Medicaid families and children groups was based on the rules of the old Aid to Families with Dependent Children (AFDC) program. This program ended in 1997 when it was replaced by Congress with block grants to the states. However, the Medicaid program continued to use those rules in determining eligibility for children younger than age 19 years, parent/caretaker relatives and pregnant women.

In addition, prior to January 1, 2014, there was no provision for covering former foster care children younger than age 26 years.

With the implementation of the use of MAGI rules for determining eligibility as required by the ACA, rules based on the old AFDC program can no longer be used. States are mandated to use MAGI rules in determining eligibility for those populations. States are also required to cover the group of former foster care children.

The Commonwealth has a mandate from CMS to use MAGI rules in determining eligibility as required by the ACA. Additionally, the Commonwealth has a mandate to cover former foster care children. There is no option except to use the new federal rules. DMAS submitted its MAGI State Plan changes to CMS, and they have been approved.

Issues: These changes create no disadvantages to the public, the agency, the Commonwealth, the regulated community, or the public. The advantages of these changes are that they will bring DMAS rules into compliance with federal requirements, which will allow DMAS to continue to collect federal matching funds.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. On behalf of the Board of Medical Assistance Services, the Director of the Department of Medical Assistance Services proposes to amend these regulations to reflect a change in Medicaid eligibility methodology mandated by the federal Affordable Care Act (ACA).

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

Estimated Economic Impact. Prior to January 1, 2014, eligibility for Medicaid Families and Children groups was based on the rules of the old Aid to Families with Dependent Children (AFDC) program. This program ended in 1997 when it was replaced by Congress with block grants to the states. However, the Medicaid program continued to use those rules in determining eligibility for children younger than the age 19, parent/caretaker relatives and pregnant women. In addition, prior to January 1, 2014, there was no provision for covering former foster care children younger than age 26.

Effective January 1, 2014, ACA required eligibility for health coverage under all health insurance affordability programs – including Medicaid -- to be based on a new Modified Adjusted Gross Income (MAGI) methodology. Calculating applicants' MAGI eligibility entails defining household composition and executing income-counting procedures based on Internal Revenue Service rules. These changes were required by the federal law to be made in State Plans for Medical Assistance.

These changes impact eligibility determinations for children younger than age 19, certain groups of children younger than age 21, pregnant women, and parent/caretaker relatives and therefore, require a change in current regulations. An additional change mandated by the ACA requires states to cover former foster care children between the ages of 18 and 26 who were receiving foster care and Medicaid on their 18th birthday and subsequently aged out of the program.

With the implementation of the use of MAGI rules for determining eligibility as required by the ACA, rules based on the old AFDC program can no longer be used. States are mandated to use MAGI rules in determining eligibility for those populations. States are also required to cover the group of former foster care children. The Commonwealth has a mandate from CMS to use MAGI rules in determining eligibility as required by the ACA. Additionally, the Commonwealth has a mandate to cover former foster care children. There is no option except to use the new federal rules. DMAS submitted its MAGI State Plan changes to CMS and they have been approved. Pursuant to the federal mandate, the adoption of the MAGI methodology has already been adopted into the State Plan and is in effect. Thus, the proposal to amend these regulations to reflect the federally mandated change in Medicaid eligibility methodology will have no impact beyond reducing the likelihood that readers of the regulations are misled as toward the methodology that is in effect.

Businesses and Entities Affected. The proposed amendments affect readers of these regulations who may have been misled as to the Medicaid eligibility methodology that is in effect.

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

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

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

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

Small Businesses:

Definition. Pursuant 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."

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

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts: 

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

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 modified adjusted gross income (MAGI) methodology. The agency concurs with this analysis.

Summary:

As required by federal law, the amendments establish that eligibility for health coverage under all health insurance affordability programs, including Medicaid, is based on the modified adjusted gross income methodology.

12VAC30-30-5. Definitions.

The follows words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Social Security Act (42 USC §§ 301 through 1397mm).

"MAGI" means modified adjusted gross income and is an eligibility methodology for how income is counted and how household composition and family size are determined. MAGI is based on federal tax rules for determining adjusted gross income.

"SSI" means supplemental security income.

"SSP" means state supplementary payment.

"Title IV-A" means Title IV, Part A of the Social Security Act, 42 USC §§ 601 through 619.

"Title IV-A agency" means the agency described in 42 USC § 602(a)(4).

"Title XIX" means Title XIX of the Social Security Act, 42 USC §§ 1396 through 1396w-5.

12VAC30-30-10. Mandatory coverage: categorically needy and other required special groups.

The Title IV-A agency or the Department of Medical Assistance Services Central Processing Unit determines eligibility for Title XIX services. The following groups shall be eligible for medical assistance as specified:

1. Recipients of AFDC.

a. The approved state AFDC plan includes:

(1) Families with an unemployed parent for the mandatory six-month period and an optional extension of 0 months.

(2) AFDC children age 18 who are full-time students in a secondary school or in the equivalent level of vocational or technical training.

b. The standards for AFDC payments are listed in 12VAC30-40-220.

2. Deemed recipients of AFDC.

a. Individuals denied a Title IV-A cash payment solely because the amount would be less than $10.

b. Effective October 1, 1990, participants in a work supplementation program under Title IV-A and any child or relative of such individual (or other individual living in the same household as such individuals) who would be eligible for AFDC if there were no work supplementation program, in accordance with § 482(e)(6) of the Act.

c. Individuals whose AFDC payments are reduced to zero by reason of recovery of overpayment of AFDC funds.

d. An assistance unit deemed to be receiving AFDC for a period of four calendar months because the family becomes ineligible for AFDC as a result of collection or increased collection of support and meets the requirements of § 406(h) of the Act.

e. Individuals deemed to be receiving AFDC who meet the requirements of § 473(b)(1) or (2) for whom an adoption of assistance agreement is in effect or foster care maintenance payments are being made under Title IV-E of the Act.

3. Effective October 1, 1990, qualified family members who would be eligible to receive AFDC under § 407 of the Act because the principal wage earner is unemployed.

4. Families terminated from AFDC solely because of earnings, hours of employment, or loss of earned income disregards entitled up to 12 months of extended benefits in accordance with § 1925 of the Act.

5. Individuals who are ineligible for AFDC solely because of eligibility requirements that are specifically prohibited under Medicaid. Included are:

a. Families denied AFDC solely because of income and resources deemed to be available from:

(1) Stepparents who are not legally liable for support of stepchildren under a state law of general applicability;

(2) Grandparents;

(3) Legal guardians; and

(4) Individual alien sponsors (who are not spouses of the individual or the individual's parent).

b. Families denied AFDC solely because of the involuntary inclusion of siblings who have income and resources of their own in the filing unit.

c. Families denied AFDC because the family transferred a resource without receiving adequate compensation.

6. Individuals who would be eligible for AFDC except for the increases in OASDI benefits under P.L. 92-336 (July 1, 1972), who were entitled to OASDI in August 1972 and who were receiving cash assistance in August 1972.

a. Includes persons who would have been eligible for cash assistance but had not applied in August 1972 (this group was included in the state's August 1972 plan).

b. Includes persons who would have been eligible for cash assistance in August 1972 if not in a medical institution or intermediate care facility (this group was included in this state's August 1972 plan).

7. Qualified pregnant women and children.

a. A pregnant woman whose pregnancy has been medically verified who:

(1) Would be eligible for an AFDC cash payment if the child had been born and was living with her;

(2) Is a member of a family that would be eligible for aid to families with dependent children of unemployed parents if the state had an AFDC-unemployed parents program; or

(3) Would be eligible for an AFDC cash payment on the basis of the income and resource requirements of the state's approved AFDC plan.

b. Children born after September 30, 1973 (specify optional earlier date), who are under age 19 and who would be eligible for an AFDC cash payment on the basis of the income and resource requirements of the state's approved AFDC plan.

12VAC30-40-280 and 12VAC30-40-290 describe the more liberal methods of treating income and resources under § 1902(r)(2) of the Act.

8. Pregnant women and infants under one year of age with family incomes up to 133% of the federal poverty level who are described in §§ 1902(a) (10)(A)(i)(IV) and 1902(l)(A) and (B) of the Act. The income level for this group is specified in 12VAC30-40-220.

9. Children:

a. Who have attained one year of age but have not attained six years of age, with family incomes at or below 133% of the federal poverty levels.

b. Born after September 30, 1983, who have attained six years of age but have not attained 19 years of age, with family incomes at or below 100% of the federal poverty levels.

Income levels for these groups are specified in 12VAC30-40-220.

10. Individuals other than qualified pregnant women and children under subdivision 7 of this section who are members of a family that would be receiving AFDC under § 407 of the Act if the state had not exercised the option under § 407(b)(2)(B)(i) of the Act to limit the number of months for which a family may receive AFDC.

11. a. A woman who, while pregnant, was eligible for, applied for, and receives Medicaid under the approved state plan on the day her pregnancy ends. The woman continues to be eligible, as though she were pregnant, for all pregnancy-related and postpartum medical assistance under the plan for a 60-day period (beginning on the last day of her pregnancy) and for any remaining days in the month in which the 60th day falls.

b. A pregnant women who would otherwise lose eligibility because of an increase in income (of the family in which she is a member) during the pregnancy or the postpartum period which extends through the end of the month in which the 60-day period (beginning on the last day of pregnancy) ends.

1. Parents and other caretaker relatives of dependent children with household income at or below a standard established by the state in 12VAC30-40-100 consistent with 42 CFR 435.110 and §§ 1902(a)(10)(A)(i)(l) and 1931(b) of the Social Security Act. Individuals qualifying under this eligibility group shall meet the following criteria:

a. Parents, other caretaker relatives (defined at 42 CFR 435.4) including pregnant women, or dependent children (defined at 42 CFR 435.4) younger than the age of 18 years. This group includes individuals who are parents or other caretaker relatives of children who are 18 years of age provided the children are full-time students in a secondary school or the equivalent level of vocational or technical training and are expected to complete such school or training before their 19th birthday.

b. Spouses of parents and other caretaker relatives shall include other relatives of the child based on blood (including those of half-blood), adoption, or marriage. Other relatives of a specified degree of the dependent child shall include any blood relative (including those of half-blood) and including (i) first cousins; (ii) nephews or nieces; (iii) persons of preceding generations as denoted by prefixes of grand, great, or great-great; (iv) stepbrother; (v) stepsister; (vi) a relative by adoption following entry of the interlocutory or final order, whichever is first; (vii) the same relatives by adoption as listed in this subdivision 1 b; and (viii) spouses of any persons named in this subdivision 1 b even after the marriage is terminated by death or divorce.

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

2. Women who are pregnant or postpartum with household income at or below a standard established by the Commonwealth in 12VAC30-40-100, consistent with 42CFR 435.116 and §§ 1902(a)(10)(A)(i)(III) and (IV), 1902(a)(10)(A)(ii)(I) and (IX), and 1931(b) of the Act. Individuals qualifying under this eligibility group shall be pregnant or postpartum as defined in 42 CFR 435.4.

a. A woman who, while pregnant, was eligible for, applied for, and received Medicaid under the approved state plan on the day her pregnancy ends. The woman continues to be eligible, as though she were pregnant, for all pregnancy-related and postpartum medical assistance under the plan for a 60-day period, beginning on the last day of her pregnancy, and for any remaining days in the month in which the 60th day falls.

b. A pregnant woman who would otherwise lose eligibility because of an increase in income of the family in which she is a member during the pregnancy or the postpartum period that extends through the end of the month in which the 60-day period, beginning on the last day of pregnancy, ends.

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

3. Infants and children younger than the age of 19 years with household income at or below standards based on this age group, consistent with 42 CFR 435.118 and §§ 1902(a)(10)(A)(i)(III), (IV) and (VIII); 1902(a)(10)(A)(ii)(IV) and (IX); and 1931(b) of the Act. Children qualifying under this eligibility group shall meet the following criteria:

a. They are younger than the age of 19 years; and

b. They have a household income at or below the standard established by the Commonwealth.

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

4. Former foster care children younger than the age of 26 years who are not otherwise mandatorily eligible in another Medicaid classification, who were on Medicaid and in foster care when they turned age 18 years, or who aged out of foster care. Individuals qualifying under this eligibility group shall meet the following criteria:

a. They shall be younger than the age of 26 years;

b. They shall not be otherwise eligible for and enrolled for mandatory coverage under the state plan; and

c. They were in foster care under the responsibility of any state or a federally recognized tribe and were enrolled in Medicaid under the state plan of that state when they turned age 18 years or at the time of aging out of the foster care program.

5. Families terminated from coverage under § 1931 of the Act solely because of earnings or hours of employment shall be entitled to up to 12 months of extended benefits in accordance with § 1925 of the Act.

12. 6. A child born to a woman who is eligible for and receiving Medicaid on the date of the child's birth. The child is deemed to have applied and been found eligible for Medicaid on the date of birth and remains eligible for one year from birth, as long as he remains a resident of the Commonwealth. A redetermination of eligibility must be completed on behalf of the deemed child at age one year and annually thereafter so long as he remains eligible.

13. 7. Aged, blind, and disabled individuals receiving cash assistance.

a. Individuals who meet more restrictive requirements for Medicaid than the SSI requirements. (This includes persons who qualify for benefits under § 1619(a) of the Act or who meet the eligibility requirements for SSI status under § 1619(b)(1) of the Act and who met the state's more restrictive requirements for Medicaid in the month before the month they qualified for SSI under § 1619(a) or met the requirements under § 1619(b)(1) of the Act. Medicaid eligibility for these individuals continues as long as they continue to meet the § 1619(a) eligibility standard or the requirements of § 1619(b) of the Act.)

b. These persons include the aged, the blind, and the disabled.

c. Protected SSI children (pursuant to § 1902(a)(10)(A)(i)(II) of the Act) (P.L. 105-33 § 4913). Children who meet the pre-welfare reform definition of childhood disability who lost their SSI coverage solely as a result of the change in the definition of childhood disability, and who also meet the more restrictive requirements for Medicaid than the SSI requirements.

d. The more restrictive categorical eligibility criteria are described below: (1) See in 12VAC30-30-40.

(2) Financial criteria are described in 12VAC30-40-10.

14. 8. Qualified severely impaired blind and disabled individuals under age 65 years who:

a. For the month preceding the first month of eligibility under the requirements of § 1905(q)(2) of the Act, received SSI, a state supplemental supplementary payment (SSP) under § 1616 of the Act or under § 212 of P.L. 93-66 or benefits under § 1619(a) of the Act and were eligible for Medicaid; or

b. For the month of June 1987, were considered to be receiving SSI under § 1619(b) of the Act and were eligible for Medicaid. These individuals must:

(1) Continue to meet the criteria for blindness or have the disabling physical or mental impairment under which the individual was found to be disabled;

(2) Except for earnings, continue to meet all nondisability-related requirements for eligibility for SSI benefits;

(3) Have unearned income in amounts that would not cause them to be ineligible for a payment under § 1611(b) of the Act;

(4) Be seriously inhibited by the lack of Medicaid coverage in their ability to continue to work or obtain employment; and

(5) Have earnings that are not sufficient to provide for himself or herself a reasonable equivalent of the Medicaid, SSI (including any federally administered SSP), or public funded attendant care services that would be available if he or she did have such earnings.

The state applies more restrictive eligibility requirements for Medicaid than under SSI and under 42 CFR 435.121. Individuals who qualify for benefits under § 1619(a) of the Act or individuals described above who meet the eligibility requirements for SSI benefits under § 1619(b)(1) of the Act and who met the state's more restrictive requirements in the month before the month they qualified for SSI under § 1619(a) or met the requirements of § 1619(b)(1) of the Act are covered. Eligibility for these individuals continues as long as they continue to qualify for benefits under § 1619(a) of the Act or meet the SSI requirements under § 1619(b)(1) of the Act.

15. 9. Except in states that apply more restrictive requirements for Medicaid than under SSI, blind or disabled individuals who:

a. Are at least 18 years of age; and

b. Lose SSI eligibility because they become entitled to Old Age, Survivor, and Disability Insurance (OASDI) child's benefits under § 202(d) of the Act or an increase in these benefits based on their disability. Medicaid eligibility for these individuals continues for as long as they would be eligible for SSI, absence their OASDI eligibility.

The state does not apply more restrictive income eligibility requirements than those under SSI.

16. 10. Except in states that apply more restrictive eligibility requirements for Medicaid than under SSI, individuals who are ineligible for SSI or optional state supplements (if the agency provides Medicaid under § 435.230 of the Act), because of requirements that do not apply under Title XIX of the Act.

17. 11. Individuals receiving mandatory state supplements.

18. 12. Individuals who in December 1973 were eligible for Medicaid as an essential spouse and who have continued, as spouse, to live with and be essential to the well-being of a recipient of cash assistance. The recipient with whom the essential spouse is living continues to meet the December 1973 eligibility requirements of the state's approved plan for OAA Old Age Assistance, AB Aid to the Blind, APTD Aid to the Permanently and Totally Disabled, or AABD Aid to the Aged, Blind, and Disabled and the spouse continues to meet the December 1973 requirements for have his or her needs included in computing the cash payment.

In December 1973, Medicaid coverage of the essential spouse was limited to: the aged;, the blind;, and the disabled.

19. 13. Institutionalized individuals who were eligible for Medicaid in December 1973 as inpatients of Title XIX medical institutions or residents of Title XIX intermediate care facilities, if, for each consecutive month after December 1973, they:

a. Continue to meet the December 1973 Medicaid State Plan eligibility requirements;

b. Remain institutionalized; and

c. Continue to need institutional care.

20. 14. Blind and disabled individuals who:

a. Meet all current requirements for Medicaid eligibility except the blindness or disability criteria;

b. Were eligible for Medicaid in December 1973 as blind or disabled; and

c. For each consecutive month after December 1973 continue to meet December 1973 eligibility criteria.

21. 15. Individuals who would be SSI/SSP eligible except for the increase in OASDI benefits under P.L. 92-336 (July 1, 1972), who were entitled to OASDI in August 1972, and who were receiving cash assistance in August 1972.

This includes persons who would have been eligible for cash assistance but had not applied in August 1972 (this group was included in this state's August 1972 plan), and persons who would have been eligible for cash assistance in August 1972 if not in a medical institution or intermediate care facility (this group was included in this state's August 1972 plan).

22. 16. Individuals who:

a. Are receiving OASDI and were receiving SSI/SSP but became ineligible for SSI/SSP after April 1977; and

b. Would still be eligible for SSI or SSP if cost-of-living increases in OASDI paid under § 215(i) of the Act received after the last month for which the individual was eligible for and received SSI/SSP and OASDI, concurrently, were deducted from income.

The state applies more restrictive eligibility requirements than those under SSI and the amount of increase that caused SSI/SSP ineligibility and subsequent increases are deducted when determining the amount of countable income for categorically needy eligibility.

23. 17. Disabled widows and widowers who would be eligible for SSI or SSP except for the increase in their OASDI benefits as a result of the elimination of the reduction factor required by § 134 of P.L. 98-21 and who are deemed, for purposes of Title XIX, to be SSI beneficiaries or SSP beneficiaries for individuals who would be eligible for SSP only, under § 1634(b) of the Act.

The state does not apply more restrictive income eligibility standards than those under SSI.

24. 18. Disabled widows, disabled widowers, and disabled unmarried divorced spouses who had been married to the insured individual for a period of at least 10 years before the divorce became effective, who have attained the age of 50, who are receiving Title II payments, and who because of the receipt of Title II income lost eligibility for SSI or SSP which they received in the month prior to the month in which they began to receive Title II payments, who would be eligible for SSI or SSP if the amount of the Title II benefit were not counted as income, and who are not entitled to Medicare Part A.

The state applies more restrictive eligibility requirements for its blind or disabled than those of the SSI program.

25. 19. Qualified Medicare beneficiaries:

a. Who are entitled to hospital insurance benefits under Medicare Part A (but not pursuant to an enrollment under § 1818 of the Act);

b. Whose income does not exceed 100% of the federal level; and

c. Whose resources do not exceed twice the maximum standard under SSI or, effective January 1, 2010, the resource limit set for the Medicare Part D Low Income Subsidy Program.

(Medical assistance for this group is limited to Medicare cost sharing as defined in item 3.2 of this plan.)

26. 20. Qualified disabled and working individuals:

a. Who are entitled to hospital insurance benefits under Medicare Part A under § 1818A of the Act;

b. Whose income does not exceed 200% of the federal poverty level;

c. Whose resources do not exceed twice the maximum standard under SSI; and

d. Who are not otherwise eligible for medical assistance under Title XIX of the Act.

(Medical assistance for this group is limited to Medicare Part A premiums under §§ 1818 and 1818A of the Act.)

27. 21. Specified low-income Medicare beneficiaries:

a. Who are entitled to hospital insurance benefits under Medicare Part A (but not pursuant to an enrollment under § 1818A of the Act);

b. Whose income for calendar years 1993 and 1994 exceeds the income level in subdivision 25 b of this section, but is less than 110% of the federal poverty level, and whose income for calendar years beginning 1995 is less than 120% of the federal poverty level; and

c. Whose resources do not exceed twice the maximum standard under SSI or, effective January 1, 2010, the resource limit set for the Medicare Part D Low Income Subsidy Program.

(Medical assistance for this group is limited to Medicare Part B premiums under § 1839 of the Act.)

28. 22. a. Each person to whom SSI benefits by reason of disability are not payable for any month solely by reason of clause (i) or (v) of § 1611(e)(3)(A) shall be treated, for purposes of Title XIX, as receiving SSI benefits for the month.

b. The state applies more restrictive eligibility standards than those under SSI. Individuals whose eligibility for SSI benefits are based solely on disability who are not payable for any months solely by reason of clause (i) or (v) of § 1611(e)(3)(A) and who continue to meet the more restrictive requirements for Medicaid eligibility under the state plan, are eligible for Medicaid as categorically needy.

12VAC30-30-20. Optional groups other than the medically needy.

The Title IV A IV-A agency determines eligibility for Title XIX services. The following groups are eligible:

1. Caretakers and pregnant women who meet the income and resource requirements of AFDC but who do not receive cash assistance.

2. 1. Individuals who would be eligible for AFDC, SSI or an optional state supplement as specified in 42 CFR 435.230, if they were not in a medical institution.

3. 2. A group or groups of individuals who would be eligible for Medicaid under the plan if they were in a nursing facility (NF) or an ICF/MR intermediate care facility for individuals with intellectual disabilities (ICF/IID), who but for the provision of home and community-based services under a waiver granted under 42 CFR Part 441, Subpart G would require institutionalization, and who will receive home and community-based services under the waiver. The group or groups covered are listed in the waiver request. This option is effective on the effective date of the state's § 1915(c) waiver under which this group is or these groups are covered. In the event an existing § 1915(c) waiver is amended to cover this group or these groups, this option is effective on the effective date of the amendment.

4. 3. Individuals who would be eligible for Medicaid under the plan if they were in a medical institution, who are terminally ill, and who receive hospice care in accordance with a voluntary election described in § 1905(o) of the Act.

5. 4. The state Commonwealth does not cover all individuals who are not described in § 1902(a)(10)(A)(i) of the Act, who meet the income and resource requirements of the AFDC state plan and who are under younger than the age of 21 years. The state Commonwealth does cover reasonable classifications of these individuals as follows:

a. Individuals for whom public agencies are assuming full or partial financial responsibility and who are:

(1) In foster homes (and are under younger than the age of 21 years).

(2) In private institutions (and are under younger than the age of 21 years).

(3) In addition to the group under subdivisions 5 4 a (1) and 4 a (2) of this section, individuals placed in foster homes or private institutions by private nonprofit agencies (and are under younger than the age of 21 years).

b. Individuals in adoptions subsidized in full or part by a public agency (who are under younger than the age of 21 years).

c. Individuals in NFs (who are under younger than the age of 21 years). NF services are provided under this plan.

d. In addition to the group under subdivision 5 4 c of this section, individuals in ICFs/MR ICF/IIDs (who are under younger than the age of 21 years).

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

6. 5. A child for whom there is in effect a state adoption assistance agreement (other than under Title IV-E of the Act), who, as determined by the state adoption agency, cannot be placed for adoption without medical assistance because the child has special care needs for medical or rehabilitative care, and who before execution of the agreement:

a. Was was eligible for Medicaid under the state's approved Medicaid plan; or

b. Would have been eligible for Medicaid if the standards and methodologies of the Title IV-E foster care program were applied rather than the AFDC standards and methodologies.

The state Commonwealth covers individuals under younger than the age of 21 years.

MAGI-based income methodologies in 12VAC30-40-100 shall be used in calculating household income.

7. 6. Section 1902(f) states and SSI criteria states without agreements under §§ 1616 and 1634 of the Act. The following groups of individuals who receive a state supplementary payment under an approved optional state supplementary payment program that meets the following conditions. The supplement is:

a. Based on need and paid in cash on a regular basis.

b. Equal to the difference between the individual's countable income and the income standard used to determine eligibility for the supplement.

c. Available to all individuals in each classification and available on a statewide basis.

d. Paid to one or more of the following classifications of individuals:

(1) Aged individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(2) Blind individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(3) Disabled individuals in domiciliary facilities or other group living arrangements as defined under SSI.

(4) Individuals receiving a state administered optional state supplement that meets the conditions specified in 42 CFR 435.230.

The supplement varies in income standard by political subdivisions according to cost-of-living differences.

The standards for optional state supplementary payments are listed in 12VAC30-40-250.

8. 7. Individuals who are in institutions for at least 30 consecutive days and who are eligible under a special income level. Eligibility begins on the first day of the 30-day period. These individuals meet the income standards specified in 12VAC30-40-220.

The state Commonwealth covers all individuals as described above in this subdivision.

9. 8. Individuals who are 65 years of age or older or who are disabled as determined under § 1614(a)(3) of the Act, whose income does not exceed the income level specified in 12VAC30-40-220 for a family of the same size, and whose resources do not exceed the maximum amount allowed under SSI.

10. 9. Individuals required to enroll in cost-effective employer-based group health plans remain eligible for a minimum enrollment period of one month.

11. Women 10. Individuals who have been screened for breast or cervical cancer under the Centers for Disease Control and Prevention Breast and Cervical Cancer Early Detection Program established under Title XV of the Public Health Service Act in accordance with § 1504 of the Public Health Service Act and need treatment for breast or cervical cancer, including a pre-cancerous condition of the breast or cervix. These women individuals are not otherwise covered under creditable coverage, as defined in § 2701(c) of the Public Health Services Act, are not eligible for Medicaid under any mandatory categorically needy eligibility group, and have not attained age 65.

12. 11. Individuals who may qualify for the Medicaid Buy-In program under § 1902(a)(10)(A)(ii)(XV) of the Social Security Act (Ticket to Work Act) if they meet the requirements for the 80% eligibility group described in 12VAC30-40-220, as well as the requirements described in 12VAC30-40-105 and 12VAC30-110-1500.

12VAC30-30-40. Reasonable classifications of individuals under younger than the age of 21, 20, 19, and or 18 years.

See The reasonable classifications of individuals younger than the age of 21, 20, 19, or 18 years are set out in subdivision 5 4 of 12VAC30-30-20. See and subdivision 5 of 12VAC30-30-30.

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 (12VAC30-40-20 through 12VAC30-40-80) and III (12VAC30-40-90 through 12VAC30-40-210) of this chapter) to receive services.

2. Meets the applicable nonfinancial eligibility conditions.

a. For the categorically needy:

(1) Except as specified under subdivisions 2 a (2) and 2 a (3) of this section, for AFDC-related Title IV-E individuals, meets covered under § 1902(a)(10)(A)(i)(1), meet the nonfinancial eligibility conditions of the AFDC Medicaid program.

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

(3) For financially eligible parent/caretaker relatives, 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), and 1931 of the Social Security Act (Act), meets meet 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 meet the nonfinancial criteria of § 1902(m) of the Act.

b. For the medically needy, meets meet 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 meet 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 meet the nonfinancial criteria of § 1905(s).

3. Is residing in the United States and: May receive Medicaid eligibility if otherwise eligible. The Commonwealth provides Medicaid to citizens and nationals of the United States and certain noncitizens consistent with requirements of 42 CFR 435.406, including during a reasonable opportunity period pending verification of their citizenship, national status, or satisfactory immigration status. The Commonwealth provides Medicaid eligibility to otherwise eligible individuals:

a. Is a citizen Who are citizens or national nationals of the United States;.

b. Is a Who are qualified alien noncitizens as defined under Public Law 104-193 who arrived in the United States prior to August 22, 1996; in § 431 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) (8 USC § 1641) or whose eligibility is required by § 402(b) of PRWORA (8 USC § 1612(b)) and certain qualified noncitizens whose eligibility is not prohibited by § 403 of PRWORA (8 USC § 1613); and

(1) The Commonwealth requires lawful permanent residents to have 40 qualifying work quarters under Title II of the Social Security Act;

(2) The Commonwealth limits eligibility to seven years for certain noncitizens, including those admitted to the United States as a:

(a) Refugee under § 207 of the Immigration and Nationality Act (INA) (8 USC § 1101 et seq.);

(b) Aslyee under § 208 of the INA;

(c) Deportee whose deportation is withheld under § 243(h) or 241(b)(3) of the INA;

(d) Cuban-Haitian entrant, as defined in § 501(e) of the Refugee Education Assistance Act of 1980;

(e) Amerasian; or

(f) Victim of a severe form of trafficking.

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; Who have declared themselves to be citizens or nationals of the United States, or any individual having satisfactory immigration status, during a reasonable opportunity period pending verification of their citizenship, nationality, or satisfactory immigration status consistent with requirements of §§ 1903(x), 1137(d), and 1902(ee) of the Act and 42 CFR 435.406, and 956.

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

e. Is an alien Who is a noncitizen who is a pregnant woman or who is a child under younger than the age of 19 years 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 noncitizen as defined in § 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996;

(2) An alien A noncitizen 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 A noncitizen 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 a noncitizen paroled for prosecution, for deferred inspection, or pending removal proceedings;

(4) An alien A noncitizen 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 Noncitizens 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 Public Law P.L. No. 101-649 as amended;

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

(f) Aliens Noncitizens currently in deferred action status; and

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

(5) A Noncitizens who are pending applicant applicants 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 younger than the age of 14 years who has had an application pending for at least 180 days;

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

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

4. Is a resident of the state Commonwealth, regardless of whether or not the individual maintains the residence permanently or maintains the residence as a fixed address. The state has open 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 intellectually disabled, 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.

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(l)(1)(A) of the Social Security Act (pregnant women and women in the 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.

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 noncitizens seeking medical assistance for the treatment of an emergency medical condition under § 1903(v)(2) of the Social Security Act (§ 1137(f)).

b. 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 noncitizens signing the declaration of satisfactory immigration status must also present and have verified documents establishing the claimed immigration status. Exception: Nonqualified aliens noncitizens seeking medical assistance for the treatment of an emergency medical condition under § 1903(v)(2).

8. Is not required to apply for AFDC public assistance cash 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. 9. Is required to apply for coverage under Medicare A, B and/or or D, or any combination of Medicaid A, B, and 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. 10. 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. 11. 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 years or who is disabled, as defined in § 1614 of the Social Security Act, is lawfully residing in the individual's home.

Part III
Financial Eligibility

Subpart Article 1
General

12VAC30-40-90. Income and resource levels and methods.

A. For individuals who are AFDC or AFDC-related medically needy or SSI recipients, the income and resource levels and methods for determining countable income and resources of the AFDC and SSI program apply, unless the plan provides for more restrictive levels and methods than SSI for SSI recipients under § 1902(f) of the Act, or more liberal methods under § 1902(r)(2) of the Act, as specified below in this section.

B. For individuals who are not AFDC or AFDC-related medically needy or SSI recipients in a non-section 1902(f) State state and those who are deemed to be cash assistance recipients, the financial eligibility requirements specified in this subpart article apply.

C. 12VAC30-40-100 specifies the methods for determining income for individuals evaluated using modified adjusted gross income (MAGI) methodology.

C. D. 12VAC30-40-220 specifies the income levels for mandatory and optional categorically needy groups of individuals, including individuals with incomes related to the Federal federal income poverty level--, that is pregnant women and 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 and aged and disabled individuals covered under § 1902(a)(10)(A)(ii)(X) of the Act--,and for mandatory groups of qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act.

D. E. 12VAC30-40-230 specifies the resource levels for mandatory and optional categorically needy poverty level related groups, and for medically needy groups.

E. F. 12VAC30-40-260 specifies the income levels for categorically needy aged, blind, and disabled persons who are covered under requirements more restrictive than SSI.

F. G. 12VAC30-40-240 specifies the methods for determining resource eligibility used by States states that have more restrictive methods than SSI, permitted under § 1902(f) of the Act.

G. H. 12VAC30-40-270 specifies the resource standards to be applied for categorically needy individuals in states that have elected to impose more restrictive eligibility requirements than SSI, permitted under § 1902(f) of the Act.

H. I. 12VAC30-40-280 specifies the methods for determining income eligibility used by States states that are more liberal than the methods of the cash assistance programs, permitted under § 1902(r)(2) of the Act.

I. J. 12VAC30-40-290 specifies the methods for determining resource eligibility used by States states that are more liberal than the methods of the cash assistance programs, permitted under § 1902(r)(2) of the Act.

Subpart Article 2
Income

12VAC30-40-100. Methods of determining income.

a. AFDC-related A. Families and Children Medically Needy individuals (except for poverty level related pregnant women, infants, and children).

(1) 1. In determining countable income for AFDC-related Families and Children Medically Needy individuals, the methods under the state's July 16, 1996, approved AFDC Aid to Families with Dependent Children plan and any more liberal methods described in 12VAC30-40-280 are used.

(2) 2. In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to children living with parents until the children become 21 years of age.

(3) 3. Agency continues to treat women eligible under the provisions of § 1902(a)(10) of the Act as eligible, without regard to any changes in income of the family of which she is a member, for the 60-day period after her pregnancy ends and any remaining days in the month in which the 60th day falls.

B. Individuals subject to the use of modified adjusted gross income (MAGI) methodology. In determining income eligibility for individuals subject to the use of MAGI-based methodologies, the following shall apply:

1. The Commonwealth shall apply MAGI-based methodologies as described in this subsection, and consistent with 42 CFR 435.603 and § 1902(e)(14) of the Act. Individuals subject to the use of MAGI-based income methodologies include:

a. Parents/caretaker relatives under §§ 1902(a)(10)(A)(i)(l) and 1931 of the Act.

b. Pregnant women under §§ 1902(a)(10)(A)(i)(l), (lll), (IV), (ii)(l), ((IV), (IX) and 1931 of the Act.

c. Children under the age of 19 years under §§ 1902(a)(10)(A)(i)(l), (lll), (IV), (VI), (VII), (ii)((IV), (IX) and 1931 of the Act.

d. Reasonable classifications of children younger than the age of 21 years under §§ 1902(a)(10)(A)(ii)(l) and (IV) of the Act.

e. Individuals younger than the age of 21 years who are under a state adoption assistance agreement under § 1902(a)(10)(A)(ii)(VIII) of the Act.

2. In the case of determining the ongoing eligibility for individuals determined eligible for Medicaid on or before December 31, 2013, MAGI-based income methodologies shall not be applied until March 31, 2014, or the next regularly scheduled renewal of eligibility, whichever is later, if the applications of such methods should result in determination of ineligibility prior to such date.

C. In determining family size for the eligibility determination of a pregnant woman, the pregnant woman shall be counted as herself plus each of the children she is expected to deliver. In determining family size during the eligibility determination of the other individuals in a household that includes a pregnant woman, the pregnant woman shall be counted as just herself.

D. Financial eligibility shall be determined consistent with the following provisions:

1. Financial eligibility shall be based on current monthly income and family size when determining eligibility for new applicants.

2. Financial eligibility shall be based on current monthly household income and family size when determining eligibility for currently enrolled individuals.

3. Household income shall be the sum of the MAGI-based income of every individual included in the individual's household except as provided at 42 CFR 435.603(d)(2) through 42 CFR 435.603(d)(4).

4. An amount equivalent to five percentage points of the federal poverty level for the applicable family size shall be deducted, in determining eligibility for Medicaid, from the household income in accordance with 42 CFR 435.603(d).

5. The age used for children with respect to 42 CFR 435.603(f)(3)(iv) shall be 19 years of age.

b. E. Aged individuals. In determining countable income for aged individuals, including aged individuals with incomes up to the federal poverty level described in section § 1902(m)(1) of the Act, the following methods are used.

(1) 1. The methods of the SSI program and/or, any more liberal methods described in 12VAC30-40-280, or both apply.

(2) 2. For optional state supplement recipients in § 1902(f) states and SSI criteria states without § 1616 or § 1634 agreements, SSI methods and/or, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

(3) 3. In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses.

c. F. Blind individuals. In determining countable income for blind individuals, only the methods of the SSI program and/or, any more liberal methods described in 12VAC30-40-280, or both apply.

For optional state supplement recipients in § 1902(f) states and SSI criteria states without § 1616 or § 1634 agreements, the SSI methods and/or, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses and the income of parents as available to children living with parents until the children become 21 years of age.

d. G. Disabled individuals. In determining countable income of disabled individuals, including disabled individuals with incomes up to the federal poverty level described in § 1902(m) of the Act, the methods of the SSI program and/or, any more liberal methods described in 12VAC30-40-280, or both apply.

For optional state supplement recipients in § 1902(f) of the Act states and SSI criteria states without § 1616 or § 1634 agreements, the SSI methods and/or, any more liberal methods than SSI described in 12VAC30-40-280, or both apply.

In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses and the income of parents as available to children living with parents until the children become 21 years of age.

e. Poverty level pregnant women, infants, and children. For pregnant women and infants or children covered under the provisions of § 1902(a)(10)(A)(i)(IV), (VI) and (VII), and § 1902(a)(10)(A)(ii)(IX) of the Act:

(1) The methods of the state's approved AFDC plan are used in determining countable income.

(2) In determining relative financial responsibility, the agency considers only the income of spouses living in the same household as available to spouses and the income of parents as available to children living with parents until the children become 21.

(3) The agency continues to treat women eligible under the provisions of § 1902(a)(10) of the Act as eligible, without regard to any changes in income of the family of which she is a member, for the 60-day period after her pregnancy ends and any remaining days in the month in which the 60th day falls.

f. H. Qualified Medicare beneficiaries. In determining countable income for qualified Medicare beneficiaries covered under § 1902(a)(10)(E)(i) of the Act, the methods of the SSI program and/or, more liberal methods described in 12VAC30-40-280, or both are used.

If an individual receives a Title II benefit, any amounts attributable to the most recent increase in the monthly insurance benefit as a result of a Title II COLA is not counted as income during a "transition period" beginning with January, when the Title II benefit for December is received, and ending with the last day of the month following the month of publication of the revised annual federal poverty level.

For individuals with Title II income, the revised poverty levels are not effective until the first day of the month following the end of the transition period.

For individuals not receiving Title II income, the revised poverty levels are effective no later than the date of publication.

g. I. Qualified disabled and working individuals. In determining countable income for qualified disabled and working individuals covered under § 1902(a)(10)(E)(ii) of the Act, the methods of the SSI program are used.

12VAC30-40-150. Resource standard; categorically needy.

a. A. Section 1902(f) States states (except as specified under items c. and d. below) subsections C and D of this section) for aged, blind and disabled individuals: same as SSI resource standards.

The resource standards for other individuals are the same as those in the related cash assistance program.

b. B. Non-1902(f) States states (except as specified under items c. and d. below) subsections C and D of this section).

1. The resource standards are the same as those in the related cash assistance program.

2. 12VAC30-40-270 specifies for 1902(f) States states the categorically needy resource levels for all covered categorically needy groups.

c. C. The agency does not apply a resource standard for pregnant women and or infants covered under the provisions of section §§ 1902(a)(10)(A)(i)(IV) and 1902(a)(10)(A)(ii)(IX) of the Act.

d. D. The agency does not apply a resource standard for parent/caretaker relatives or children covered under the provisions of § 1902(a)(10)(A)(i)(VI), 1902(a)(10)(A)(i)(l), or 1931 of the Act.

e. E. For aged and disabled individuals described in § 1902(m)(1) of the Act who are covered under § 1902(a)(10)(A)(ii)(X) of the Act, 12VAC30-40-230 specifies the resource levels for these individuals.

Part IV
Eligibility Requirements

12VAC30-40-220. Income eligibility levels.

A. Mandatory Categorically Needy

1. AFDC-related groups other than poverty level pregnant women and infants.

Family Size	Need Standard	Payment Standard	Maximum Payment Amounts
	See Table 1	See Table 2

 

STANDARDS OF ASSISTANCE (Increased annually by the increase in the Consumer Price Index)
GROUP I
Size of Assistance Unit	Table 1 (100%)	Table 2 (90%)
1	$151.11	$135.58
2	237.01	214.24
3	305.32	274.27
4	370.53	333.27
5	436.77	393.30
6	489.55	441.94
7	553.72	498.87
8	623.07	559.93
9	679.99	611.68
10	743.13	669.64
Each person above 10	63.13	57.96
MAXIMUM REIMBURSABLE PAYMENT $403

 

GROUP II
Size of Assistance Unit	Table 1 (100%)	Table 2 (90%)
1	$180.09	$162.49
2	265.99	239.08
3	333.27	301.18
4	399.51	359.14
5	472.99	423.35
6	526.81	474.03
7	589.95	529.92
8	658.26	592.02
9	716.22	644.80
10	780.39	701.73
Each person above 10	63.13	57.96
MAXIMUM REIMBURSABLE PAYMENT $435

 

GROUP III
Size of Assistance Unit	Table 1 (100%)	Table 2 (90%)
1	$251.50	$227.70
2	338.44	304.29
3	406.75	366.39
4	472.99	424.35
5	560.97	505.08
6	613.75	552.69
7	677.92	610.65
8	745.23	672.75
9	806.26	725.53
10	868.33	781.42
Each person above 10	63.13	57.96
MAXIMUM REIMBURSABLE PAYMENT $518

A. 1. Groups I, II, and III income limits are set forth in this subdivision 1.

Group I
Size of assistance unit	Monthly	Yearly
1	$239	$2,868
2	364	4,368
3	464	5,568
4	563	6,756
5	663	7,956
6	748	8,976
7	844	10,128
8	945	11,340
Each additional person	98	1,176

 

Group II
Size of assistance unit	Monthly	Yearly
1	$313	$3,756
2	449	5,388
3	565	6,780
4	675	8,100
5	794	9,528
6	895	10,740
7	1,002	12,024
8	1,119	13,428
Each additional person	111	1,332

 

Group III
Size of assistance unit	Monthly	Yearly
1	$472	5,664
2	633	7,596
3	774	9,288
4	909	10,908
5	1,074	12,888
6	1,195	14,340
7	1,330	15,960
8	1,471	17,652
Each additional person	135	1,620

2. Pregnant women and infants under § 1902(a)(10)(i)(IV) of the Act:. Effective April 1, 1990, January 1, 2014, based on 133% 143% of the official federal income poverty level.

3. Children under § 1902(a)(10)(i)(VI) of the Act (children who have attained age 1 one year but have not attained age 6) six years), the income eligibility level is 133% 143% of the federal poverty level (as revised annually in the Federal Register) for the size family involved.

4. For children under § 1902(a)(10)(i)(VII) of the Act (children who were born after September 30, 1983, and have attained age 6 six years but have not attained age 19 years), the income eligibility level is 100% 143% of the federal poverty level (as revised annually in the Federal Register) for the size family involved.

B. Treatment of cost of living adjustment (COLA) for groups with income related to federal poverty level.

1. If an individual receives a Title II benefit, any amount attributable to the most recent increase in the monthly insurance benefit as a result of a Title II COLA is not counted as income during a "transition period" beginning with January, when the Title II benefit for December is received, and ending with the last day of the month following the month of publication of the revised annual federal poverty level.

2. For individuals with Title II income, the revised poverty levels are not effective until the first day of the month following the end of the transition period.

3. For individuals not receiving Title II income, the revised poverty levels are effective no later than the beginning of the month following the date of publication. C. Qualified Medicare beneficiaries with incomes related to federal poverty level.

The levels for determining income eligibility for groups of qualified Medicare beneficiaries under the provisions of § 1905(p)(2)(A) of the Act are as follows:

1. Section 1902(f) states, which as of January 1, 1987, used income standards more restrictive than SSI., (VA Virginia did not apply a more restrictive income standard as of January 1, 1987.)

Based on the following percentage of the official federal income poverty level:

Effective Jan. January 1, 1989: 85%

Effective Jan. January 1, 1990: 90% (no more than 100)

Effective Jan. January 1, 1991: 100% (no more than 100)

Effective Jan. January 1, 1992: 100%

D. Aged and disabled individuals described in § 1902(m)(1) of the Act; Level for determining income eligibility for aged and disabled persons described in § 1902(m)(1) of the Act is 80% of the official federal income poverty level (as revised annually in the Federal Register) for the size family involved.

E. Income levels—for medically needy. (Increased annually the increase in the Consumer Price Index but no higher than the level permitted to claim federal financial participation.)

1. The following income levels are applicable to all groups, urban and rural.

2. The agency has methods for excluding from its claim for FFP federal financial participation payments made on behalf of individuals whose income exceeds these limits.

 

Title of Regulation: 12VAC30-40. Eligibility Conditions and Requirements (amending 12VAC30-40-300).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 12, 2017.

Effective Date: July 27, 2017.

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 32.1-125 of the Code of Virginia authorizes the Board of Medical Assistance Services 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.

Section 6012(d) of the Deficit Reduction Act of 2005 (DRA) changed the Medicaid rules for the treatment of annuities. It specified (i) that Medicaid applicants be required to disclose and describe any interests they or their community spouse had in an annuity; (ii) that the state be named as a remainder beneficiary in the first position unless there is a community spouse or a minor or disabled child (if there is a community spouse or a minor or disabled child, then the state may be named in the next position after these individuals); (iii) that annuities purchased after February 8, 2006, must be treated as transfers of assets for less than fair market value unless they meet certain criteria; and (iv) that annuities purchased before February 8, 2006, but modified after that date would be subject to all requirements applicable to annuities purchased after February 8, 2006. Changes beyond the control of the individual would not cause the annuity to be subject to the specified criteria.

When DMAS modified 12VAC30-40-300 to add subsection F (see Volume 22, Issue 23 of the Virginia Register of Regulations, published July 24, 2006, and effective August 23, 2006), it did not include the requirement listed in the above paragraph at clause (iv) that annuities purchased before February 8, 2006, but modified after that date would be subject to all requirements applicable to annuities purchased after February 8, 2006.

This action remedies that inadvertent omission and aligns the annuity regulations to all Centers for Medicare and Medicaid Services guidance on the federal DRA requirements.

Purpose: The amendments add federal requirements and current practice regarding annuities purchased after February 8, 2006.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action is being promulgated as a fast-track rulemaking action because the subject of this regulation is not controversial. DMAS has been following the federal rule contained in this action, and this change conforms the language of the regulation with federal regulations and current Virginia practice.

Substance: The section of the State Plan for Medical Assistance that is affected by this action is Eligibility Conditions and Requirements: Transfer of Resources.

DMAS has regulations concerning the treatment of annuities. Individuals who have excess resources, as compared to Medicaid's limits, often use such financial instruments to shelter or hide their resources from consideration during the eligibility determination process. Sheltering or transferring resources for less than fair market value can cause an individual's eligibility for Medicaid to be delayed for years depending on dollar value. 

These regulations add a provision to 12VAC30-40-300 F 3 to indicate that the other requirements of 12VAC30-40-300 apply to changes to annuities after February 8, 2006. Such changes could be (i) additions of principal, (ii) elective withdrawals, (iii) requests to change the annuity's distribution, (iv) elections to annuitize the contract, and (v) similar actions.

Changes that occur that are beyond the control of the individual, such as a change in law, changes in policies of the insurer, or a change in the terms based on other factors would not cause the annuity to be subject to the other conditions in 12VAC30-40-300 F 3.

Issues: In 2012, the U.S. Department of Health and Human Services Office of Inspector General audited Virginia's progress in implementing certain provisions of the DRA requirements for the handling of annuities. Virginia reported successful implementation of all requirements with the exception of one. The overlooked requirement required that annuities, regardless of their purchase dates, be subject to asset transfer rules if certain transactions take place after February 8, 2006. This regulatory action addresses that previous oversight.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed regulation conforms to section 6012(d) of the federal Deficit Reduction Act (2005) by clarifying that annuities purchased before February 8, 2006, but modified after that date are subject to all requirements applicable to annuities purchased after February 8, 2006.

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

Estimated Economic Impact. Section 6012(d) of the Deficit Reduction Act (2005) (DRA) amended rules for treatment of annuities in several aspects when determining Medicaid eligibility. The amended federal rules were incorporated into this regulation on August 9, 2006. In 2012, the U.S. Department of Health and Human Services Office of Inspector General audited Virginia's progress in implementing certain provisions of the DRA's requirements for the handling of annuities. Virginia reported successful implementation of all requirements with the exception of one. The one, overlooked requirement was that the regulatory language did not specify annuities, regardless of their purchase dates, be subject to asset transfer rules if certain modifications are made to them after February 8, 2006. This regulatory action cures that oversight by adding language to conform to the requirements of DRA.

The proposed regulation is beneficial in that it improves the consistency between this regulation and the federal law. Since Virginia has already been treating the annuities according to federal law, no other significant economic effect is expected.

Businesses and Entities Affected. 178 annuities were purchased or modified by Medicaid recipients since 2006. How many of the 178 were purchased before 2006 and modified thereafter is not known.

Localities Particularly Affected. The proposed regulation does not disproportionally affect particular localities.

Projected Impact on Employment. No significant impact on employment is expected.

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

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

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. The proposed regulation does not introduce any costs or other effects on small businesses.

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

Adverse Impacts:

Businesses. The proposed amendment does not have an adverse impact on non-small businesses.

Localities. The proposed amendment will not adversely affect localities.

Other Entities. The proposed amendment will not adversely affect other entities.

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget and concurs with this analysis.

Summary:

The amendment requires that annuities, purchased before February 8, 2006, but modified after that date, are subject to all requirements applicable to annuities purchased after February 8, 2006, except changes that are beyond the control of the individual. The amendment is in accordance with the federal Deficit Reduction Act of 2005 and corrects an inadvertent omission from a prior regulatory action.

12VAC30-40-300. Transfer of resources.

The agency provides for the denial of eligibility by reason of disposal of resources for less than fair market value. This section includes procedures applicable to all transfers of resources.

A. Except as noted below, the criteria for determining the period of ineligibility are the same as criteria specified in § 1613(c) of the Social Security Act (Act): Transfer of resources other than the home of an individual who is an inpatient in a medical institution.

1. The agency uses a procedure which that provides for a total period of ineligibility greater than 24 months for individuals who have transferred resources for less than fair market value when the uncompensated value of disposed of resources exceeds $12,000. This period bears a reasonable relationship to the uncompensated value of the transfer. The computation of the period and the reasonable relationship of this period to the uncompensated value is described as follows:

This transfer of resources rule includes the transfer of the former residence of an inpatient in a medical institution.

2. The agency has provisions for waiver of denial of eligibility in any instance where the State state determines that a denial would work an undue hardship.

B. Other than those procedures specified elsewhere in this section, the procedures for implementing denial of eligibility by reason of disposal of resources for less than fair market value are as follows:

1. If the uncompensated value of the transfer is $12,000 or less: the individual is ineligible for two years from the date of the transfer.

2. If the uncompensated value of the transfer is more than $12,000: the individual is ineligible two years, plus an additional two months for every $1,000 or part thereof of uncompensated value over $12,000, from the date of transfer.

C. Property Transfer transfer. An applicant for or recipient of Medicaid is ineligible for Medicaid if he transferred or otherwise disposed of his legal equitable interest in real or personal property for less than fair market value. Transfer of property precludes eligibility for two years from the date of the transfer if the uncompensated value of the property was $12,000 or less. If the uncompensated value was over $12,000 an additional two months of ineligibility will be added for each $1,000 of additional uncompensated value (see following Table the table in subdivision 7 of this subsection). "Uncompensated value" means the current market value of the property, or equity in the property, at the time it was transferred, less the amount of compensation (money, goods, service, et cetera) etc.) received for the property.

Exceptions to this provision are:

1. When the transfer was not made with the intent of establishing or retaining eligibility for Medicaid or SSI. Any transfer shall be presumed to have been for the purposes of establishing or retaining eligibility for Medicaid or SSI unless the applicant/recipient furnishes convincing evidence to establish that the transfer was exclusively for some other purpose.

a. The applicant/recipient has the burden of establishing, by objective evidence of facts rather than statement of subjective intent, that the transfer was exclusively for another purpose.

b. Such evidence shall include evidence that adequate resources were available at the time of the transfer for the applicant/recipient's support and medical care including nursing home care, considering his or her age, state of health, and life expectancy.

c. The declaration of another purpose shall not be sufficient to overcome this presumption of intent.

d. The establishment of the fact that the applicant/recipient did not have specific knowledge of Medicaid or SSI eligibility policy is not sufficient to overcome the presumption of intent.

2. Retention of the property would have no effect on eligibility unless the property is a residence of an individual in a nursing home for a temporary period.

3. When transfer of the property resulted in compensation (in money, goods, or services) to the applicant/recipient which that approximated the equity value of the property.

4. When the receiver of the property has made payment on the cost of the applicant/recipient's medical care which that approximates the equity value of the property.

5. When the property owner has been a victim of another person's actions, except those of a legal guardian, committee, or power-of-attorney, who obtained or disposed of the property without the applicant/recipient's full understanding of the action.

6. When prior to October 1, 1982, the Medicaid applicant transferred a prepaid burial account (plan) which that was valued at less than $1,500.00 $1,500 for the purpose of retaining eligibility for SSI, and was found ineligible for Medicaid solely for that reason. The applicant, after reapplying, may be eligible regardless of the earlier transfer of a prepaid burial account if the applicant currently meets all other eligibility criteria.

7. When the property is transferred into an irrevocable trust designated solely for the burial of the transferor or his spouse. The amount transferred into the irrevocable burial trust, together with the face value of life insurance and any other irrevocable funeral arrangements, shall not exceed $2,000 prior to July 1, 1988, and shall not exceed $2,500 after July 1, 1988.

Period Of of Ineligibility Due To to Transfer Of of Property Table
Uncompensated	Value of Property	Period of Ineligibility
0	$12,000.00	24 months
$12,000.01	$13,000.00	26 months
$13,000.01	$14,000.00	28 months
$14,000.01	$15,000.00	30 months
$15,000.01	$16,000.00	32 months
For each additional $1,000.00, add two months of ineligibility.

D. The preceding policy applies to eligibility determinations on and before June 30, 1988. The following policy applies to eligibility determinations on and after July 1, 1988.

1. The State plan provides for a period of ineligibility for nursing facility services, equivalent services in a medical institution, and home and community-based services in the case of an institutionalized individual (as defined in paragraph (3) of § 1917(c) who, disposed of resources for less than fair market value, at any time during or after the 30-month period immediately before the date the individual becomes an institutionalized individual (if the individual is entitled to medical assistance under the State plan Plan on that date) or, if the individual is not entitled on the date of institutionalization, the date the individual applies for assistance while an institutionalized individual.

a. Thirty months; or

b. The total uncompensated value of the resources so transferred, divided by the average cost, to a private patient at the time of application, of nursing facility services in the State state.

2. An individual shall not be ineligible for medical assistance by reason of paragraph subdivision 1 of this subsection to the extent that:

a. The resources transferred were a home and title to the home was transferred to:

(1) The spouse of such individual;

(2) A child of such individual who is under age 21 years, or is blind or disabled as defined in § 1614 of the Social Security Act;

(3) A sibling of such individual who has an equity interest in such home and who was residing in such individual's home for a period of at least one year immediately before the date the individual becomes an institutionalized individual; or

(4) A son or daughter of such individual (other than a child described in clause (2)) subdivision 2 a (2) of this subsection) who was residing in such individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual; and who (as determined by the State) state) provided care to such individual which that permitted such individual to reside at home rather than in such an institution or facility;

b. The resources were transferred to (or to another for sole benefit of) the community spouse as defined in § 1924(h)(2) of the Social Security Act, or to the individual's child who is under age 21 years, or is blind or disabled as defined in § 1614 of the Social Security Act.

c. A satisfactory showing is made to the State state (in accordance with any regulations promulgated by the Secretary of United States Department of Health and Human Services) that:

(1) The individual intended to dispose of the resources either at fair market value, or for other valuable consideration. To show intent to receive adequate compensation, the individual must provide objective evidence that:

(a) For real property, the individual made an initial and continuing effort to sell the property according to the "reasonable effort to sell" provisions of the Virginia Medicaid State Plan;

(b) For real or personal property, the individual made a legally binding contract that provided for receipt of adequate compensation in a specified form (goods, services, money, etc.) in exchange for the transferred property;

(c) An irrevocable burial trust of $2,500 or less was established on or after July 1, 1988, as compensation for the transferred money;

(d) An irrevocable burial trust over $2500 was established on or after July 1, 1988, and the individual provides objective evidence to show that all funds in the trust are for identifiable funeral services; or

(2) The resources were transferred exclusively for a purpose other than to qualify for medical assistance; the individual must provide objective evidence that the transfer was exclusively for another purpose and the reason for the transfer did not include possible or future Medicaid eligibility; or

(3) Consistent with § 1917(c)(2)(D), an institutionalized spouse who (or whose spouse) transferred resources for less than fair market value shall not be found ineligible for nursing facility service, for a level of care in a medical institution equivalent to that of nursing facility services, or for home and community-based services where the state determines that denial of eligibility would work an undue hardship under the provision of § 1917(c)(2)(D) of the Social Security Act.

3. In this section, the term "institutionalized individual" means an individual who is an inpatient in a nursing facility, or who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in § 1902 (a)(10)(A)(ii)(VI).

4. In this section, the individual's home is defined as the house and lot used as the principal residence and all contiguous property up to $5,000.

E. Transfers and Trusts After trusts after August 10, 1993. The following policy applies to medical assistance provided for services furnished on or after October 1, 1993, with respect to assets disposed of after August 10, 1993, and before February 8, 2006. It also applies to trusts established after August 10, 1993.

1. Definitions.

"Assets" means, with respect to an individual, all income and resources of the individual and of the individual's spouse, including any income or resources which that the individual or the individual's spouse is entitled to but does not receive because of action:

a. By the individual or the individual's spouse;

b. By a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or

c. By any person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

"Income" has the meaning given such term in § 1612 of the Social Security Act.

"Institutionalized individual" means an individual who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing faculty or who is described in § 1902(a)(10)(A)(ii)(VI) of the Social Security Act.

"Resources" has the meaning given such term in § 1613 of the Social Security Act, without regard (in the case of an institutionalized individual) to the exclusion described in subsection (a)(1) of such section.

2. Transfer of Assets Rule assets rule. An institutionalized individual who disposes of, or whose spouse disposes of, assets for less than fair market value on or after the look-back date specified in subdivision 2 b of this subsection shall be ineligible for nursing facility services, a level of care in any institution equivalent to that of nursing facility services and for home or community-based services furnished under a waiver granted under subsection (c) of § 1915(c) of the Social Security Act.

a. Period of Ineligibility ineligibility. The ineligibility period shall begin on the first day of the first month during or after which assets have been transferred for less than fair market value and which that does not occur in any other period of ineligibility under this section. The ineligibility period shall be equal to but shall not exceed the number of months derived by dividing:

(1) The total, cumulative uncompensated value of all assets transferred as defined in subdivision E 1 of this section on or after the look-back date specified in subdivision E 2 b of this section by

(2) The average monthly cost to a private patient of nursing facility services in the Commonwealth at the time of application for medical assistance.

b. Look-back Date date. The look-back date is a date that is 36 months (or 60 months in the case of payments from a trust or portions of a trust that are treated as assets disposed of by the individual pursuant to this section or Section 3) subdivision 3 of this subsection) before the first date as of which the individual both is an institutionalized individual and has applied for medical assistance under the State Plan for Medical Assistance.

c. Exceptions. An individual shall not be ineligible for medical assistance by reason of this section to the extent that:

(1) The assets transferred were a home and title to the home was transferred to:

(a) The spouse of the individual;

(b) A child of the individual who is under age 21 years, or is blind or disabled as defined in § 1614 of the Social Security Act;

(c) A sibling of the individual who has an equity interest in the home and who was residing in the individual's home for a period of a least one year immediately before the date the individual becomes an institutionalized individual; or

(d) A son or daughter of the individual (other than a child described in clause subdivision 2 C (1) (b) of this subsection) who was residing in the individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who provided care to the individual which that permitted the individual to reside at home rather than in an institution or facility.

(2) The assets:

(a) Were transferred to the individual's spouse or to another person for the sole benefit of the individual's spouse;

(b) Were transferred from the individual's spouse to another for the sole benefit of the individual's spouse;

(c) Were transferred to the individual's child who is under age 21 years or who is disabled as defined in § 1614 of the Social Security Act or to a trust (including a trust described in subdivision 3 g of this subsection) established solely for the benefit of such child; or

(d) Were transferred to a trust (including a trust described in subdivision 3 g of this subsection) established solely for the benefit of an individual under age 65 years of age who is disabled as defined in § 1614(a)(3) of the Social Security Act.

(3) A satisfactory showing is made that:

(a) The individual intended to dispose of the assets either at fair market value, or for other valuable consideration; or

(b) The assets were transferred exclusively for a purpose other than to qualify for medical assistance; or

(c) All assets transferred for less than fair market value have been returned to the individual; or

(d) The Commonwealth determines that the denial of eligibility would work an undue hardship.

d. Assets Held In Common With Another Person held in common with another person. In the case of an asset held by an individual in common with another person or persons in a joint tenancy, tenancy in common, or other arrangement recognized under State state law, the asset (or the affected portion of such asset) shall be considered to be transferred by such individual when any action is taken, either by such individual or by any other person, that reduces or eliminates such individual's ownership or control of such asset.

e. Transfers by Both Spouses both spouses. In the case of a transfer by the spouse of an individual which that results in a period of ineligibility for medical assistance, the Commonwealth shall apportion the period of ineligibility (or any portion of the period) among the individual and the individual's spouse if the spouse otherwise becomes eligible for medical assistance under the State Plan.

3. For Trust(s) Created After trusts created after August 10, 1993. For purposes of determining an individual's eligibility for, or amount of, medical assistance benefits, subject to subdivision 3 g of this subsection, these rules shall apply.

a. Trust(s) Defined Trust defined. The term "trust" includes any legal instrument or device that is similar to a trust but includes an annuity only to such extent and in such manner as the United States U.S. Secretary of Health and Human Services specifies for purposes of administration of § 1917(c) or (d) of the Social Security Act.

b. Creation of Trust(s) Defined trust defined. For purposes of this subsection, an individual shall be considered to have established a trust(s) trust if assets of the individual were used to form all or part of the corpus of the trust(s) trust and if any of the following individuals established the trust(s) trusts other than by will:

(1) The individual;

(2) The individual's spouse;

(3) A person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse;

(4) A person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

c. Proportional Interest In Trust(s) interest in a trust. In the case of a trust(s) trust the corpus of which includes assets of an individual (as determined under subdivision 3 b of this subsection) and assets of any other person or persons, the provision of this section shall apply to the portion of the trust(s) trust attributable to the assets of the individual.

d. Trust(s) Affected trust. Subject to subdivision 3 g of this subsection, this section shall apply without regard to:

(1) The purposes for which a trust(s) trust is established;

(2) Whether the trustee(s) trustee has or exercises any discretion under the trust(s) trust;

(3) Any restrictions on when or whether distributions may be made from the trust(s) trust; or

(4) Any restrictions on the use of distributions from the trust(s) trust.

e. Revocable Trust(s) trusts. In the case of a revocable trust(s) trust,

(1) The corpus of the trust(s) trust shall be considered resources available to the individual;

(2) Payments from the trust(s) trust to or for the benefit of the individual shall be considered income of the individual; and

(3) Any other payments from the trust(s) trust shall be considered assets disposed of by the individual for the purposes of subdivision E 2 of this section.

f. Irrevocable Trust(s) trust. In the case of an irrevocable trust(s) trust,

(1) If there are any circumstances under which payment from the trust(s) trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income:

(a) To or for the benefit of the individual, shall be considered income of the individual; and

(b) For any other purpose, shall be considered a transfer of assets by the individual subject to subdivision E 2 of this section; and

(2) Any portion of the trust(s) trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust(s) trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of subdivision E 2 of this section, and the value of the trust(s) trust shall be determined for purposes of such section by including the amount of any payments made from such portion of the trust(s) trust after such date.

g. Exceptions. This section shall not apply to any of the following trust(s) trusts:

(1) A trust(s) trust containing the assets of an individual under age 65 years who is disabled (as defined in section § 1614(a)(3) of the Social Security Act) and which that is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual or a court if the Commonwealth will receive all amounts remaining in the trust(s) trust upon the death of the individual up to an amount equal to the total medical assistance paid on behalf of the individual under this State Plan.

(2) A trust containing the assets of an individual who is disabled (as defined in section § 1614(a)(3) of the Social Security Act) that meets all of the following conditions:

(a) The trust(s) trust is established and managed by a non-profit nonprofit association.

(b) A separate account is maintained for each beneficiary of the trust(s) trust, but, for purposes of investment and management of funds, the trust(s) trust pools these accounts.

(c) Accounts in the trust(s) trust are established solely for the benefit of individuals who are disabled (as defined in section § 1614(a)(3) of the Social Security Act) by the parent, grandparent, or legal guardian of such individuals, by such individuals, or by a court.

(d) To the extent that amounts remaining in the beneficiary's account upon the death of the beneficiary are not retained by the trust(s) trust, the trust(s) trust pays to the Commonwealth from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary under this State Plan.

F. Transfers made on or after February 8, 2006. The following policy applies to medical assistance provided for services furnished on or after February 8, 2006, with respect to assets disposed of on or after February 8, 2006.

1. Definitions.

"Assets" means, with respect to an individual, all income and resources of the individual and of the individual's spouse, including any income or resources that the individual or the individual's spouse is entitled to but does not receive because of action:

a. By the individual or the individual's spouse;

b. By a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or

c. By any person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

The term "assets" includes the purchase of a life estate interest in another individual's home unless the purchaser resides in the home for a period of at least one year after the date of the purchase. The term "assets" also includes funds used to purchase a promissory note, loan, or mortgage unless such note, loan, or mortgage:

a. Has a repayment term that is actuarially sound (determined in accordance with actuarial publications of the Social Security Administration);

b. Provides for payments to be made in equal amounts during the term of the loan with no deferral and no balloon payments made; and

c. Prohibits the cancellation of the balance upon the death of the lender.

In the case of a promissory note, loan, or mortgage that does not satisfy the requirements of subdivisions a through c of this definition, the value of such note, loan, or mortgage shall be the outstanding balance due as of the date of the individual's application for medical assistance.

"Income" has the meaning given such term in § 1612 of the Social Security Act.

"Institutionalized individual" means an individual who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in § 1902(a)(10)(A)(ii)(VI) of the Social Security Act.

"Resources" has the meaning given such term in § 1613 of the Social Security Act, without regard (in the case of an institutionalized individual) to the exclusion described in subsection (a)(1) of such section.

2. Transfer of Assets Rule assets rule. An institutionalized individual who disposes of, or whose spouse disposes of, assets for less than fair market value on or after the look-back date specified in subdivision 2 b of this subsection shall be ineligible for nursing facility services, a level of care in any institution equivalent to that of nursing facility services, and for home or community-based services furnished under a waiver granted under subsection (c) of § 1915(c) of the Social Security Act.

a. Period of Ineligibility ineligibility. The ineligibility period shall begin on the first day of a month during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance under the state plan State Plan and would otherwise be receiving Medicaid-covered institutional level care based on an approved application for such care but for the application of the penalty period, whichever is later, and which that does not occur in any other period of ineligibility under this section. The ineligibility period shall be equal to but shall not exceed the number of months, including any fractional portion of a month, derived by dividing:

(1) The total, cumulative uncompensated value of all assets transferred as defined in subdivision 1 of this subsection on or after the look-back date specified in subdivision 2 b of this subsection by:

(2) The average monthly cost to a private patient of nursing facility services in the Commonwealth at the time of application for medical assistance.

b. Look-back Date date. The look-back date is a date that is 60 months before the first date the individual is both an institutionalized individual and has applied for medical assistance under the State Plan for Medical Assistance.

c. Exceptions. An individual shall not be ineligible for medical assistance by reason of this section to the extent that:

(1) The assets transferred were a home and title to the home was transferred to:

(a) The spouse of the individual;

(b) A child of the individual who is under age 21 years, or is blind or disabled as defined in § 1614 of the Social Security Act;

(c) A sibling of the individual who has an equity interest in the home and who was residing in the individual's home for a period of a least one year immediately before the date the individual becomes an institutionalized individual; or

(d) A son or daughter of the individual (other than a child described in clause subdivision 2 b c (1) (b) of this subsection) who was residing in the individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who provided care to the individual that permitted the individual to reside at home rather than in an institution or facility.

(2) The assets:

(a) Were transferred to the individual's spouse or to another person for the sole benefit of the individual's spouse;

(b) Were transferred from the individual's spouse to another for the sole benefit of the individual's spouse;

(c) Were transferred to the individual's child who is under age 21 years or who is disabled as defined in § 1614 of the Social Security Act, or to a trust (including a trust described in subdivision E 3 g of this section) established solely for the benefit of such child; or

(d) Were transferred to a trust (including a trust described in subdivision E 3 g of this section) established solely for the benefit of an individual under age 65 years of age who is disabled as defined in § 1614(a)(3) of the Social Security Act.

(3) A satisfactory showing is made that:

(a) The individual intended to dispose of the assets either at fair market value, or for other valuable consideration; or

(b) The assets were transferred exclusively for a purpose other than to qualify for medical assistance; or

(c) All assets transferred for less than fair market value have been returned to the individual; or

(d) The Commonwealth determines that the denial of eligibility would work an undue hardship.

d. Assets Held In Common With Another Person held in common with another person. In the case of an asset held by an individual in common with another person or persons in a joint tenancy, tenancy in common, or other arrangement recognized under state law, the asset (or the affected portion of such asset) shall be considered to be transferred by such individual when any action is taken, either by such individual or by any other person, that reduces or eliminates such individual's ownership or control of such asset.

e. Transfers by Both Spouses both spouses. In the case of a transfer by the spouse of an individual that results in a period of ineligibility for medical assistance, the Commonwealth shall apportion the period of ineligibility (or any portion of the period) among the individual and the individual's spouse if the spouse otherwise becomes eligible for medical assistance under the State Plan.

3. Annuities: The following shall govern annuities:

a. For purposes of this section, the purchase of an annuity by the institutionalized spouse or the community spouse will be treated as the disposal of an asset for less than fair market value unless:

(1) The state is named as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the annuitant; or

(2) The state is named as a remainder beneficiary in the second position after the community spouse or minor or disabled child and is named in the first position if such spouse or a representative of such child disposes of any remainder for less than fair market value.

b. The purchase of annuity by or on behalf of an annuitant who has applied for medical assistance for long-term care services will be considered a transfer of assets for less than fair market value unless:

(1) The annuity is described in subsection (b), individual retirement annuities, or (q), deemed IRAs under qualified employer plans, of § 408 of the Internal Revenue Code of 1986; or

(2) Purchased with the proceeds from:

(a) An account or trust described in subsection (a), individual retirement account, (c), accounts established by employers and certain associations of employees, or (p), simple retirement accounts, of § 408 of such Code;

(b) A simplified employee pension (within the meaning of § 408(k) of such Code); or

(c) A Roth IRA described in § 408A of such Code; or

(3) The annuity is:

(a) Irrevocable and nonassignable;

(b) Is actuarially sound (as determined by Social Security Administration publications); and

(c) Provides for payments in equal amounts during the term of the annuity with no deferral and no balloon payments made.

c. For annuities purchased prior to February 8, 2006, certain transactions occurring on or after that date shall make an annuity subject to this section including any action taken by the individual that changes the course of payment made by the annuity or the treatment of the income or principal of the annuity. The Commonwealth shall take such changes into account in determining the amount of the state's obligation for medical assistance or in the individual's eligibility for such assistance.

(1) These actions include additions of principal, elective withdrawals, requests to change the distribution of the annuity, elections to annuitize the contract, and similar actions.

(2) Changes that occur based on the terms of the annuity that existed prior to February 8, 2006, and that do not require a decision, election, or action to take effect shall not be subject to this section.

(3) Changes beyond the control of the individual, such as a change in law, in the policies of the insurer, or in the terms based on other factors, shall not cause the annuity to be subject to this section.

Title of Regulation: 12VAC30-60. Standards Established and Methods Used to Assure High Quality Care (amending 12VAC30-60-70).

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

Effective Date: July 13, 2017.

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.

Summary:

To comply with final regulations of the federal Centers for Medicare and Medicaid Services, the amendments (i) permit the provision of home health services in settings in which normal life activities take place and (ii) require physicians or certain approved non-physician practitioners to conduct and document face-to-face encounters with Medicaid beneficiaries, within specific timeframes, prior to ordering home health services.

12VAC30-60-70. Utilization control: Home home health services.

A. Home health services which that meet the standards prescribed for participation under Title XVIII, excluding any homebound standard, will be supplied.

B. Home health services shall be provided by a home health agency that is (i) licensed by the Virginia Department of Health (VDH); or that is, (ii) certified by the VDH Virginia Department of Health under provisions of Title XVIII (Medicare) or Title XIX (Medicaid) of the Social Security Act;, or that is (iii) accredited either by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) or by the Community Health Accreditation Program (CHAP) established by the National League of Nursing. Services shall be provided on a part-time or intermittent basis to a recipient in his place of residence any setting in which normal life activities take place. The place of residence Home health services shall not include be furnished to individuals residing in a hospital or, nursing facility, intermediate care facility for individuals with intellectual disabilities, or any setting in which payment is or could be made under Medicaid for inpatient services that include room and board. Home health services must be ordered or prescribed by a physician and be part of a written plan of care that the physician shall review at least every 60 days.

C. Covered services. Any one of the following services may be offered as the sole home health service and shall not be contingent upon the provision of another service.

1. Nursing services;

2. Home health aide services;

3. Physical therapy services;

4. Occupational therapy services; or

5. Speech-language pathology services.

D. General conditions. The following general conditions apply to skilled nursing, home health aide, physical therapy, occupational therapy, and speech-language pathology services provided by home health agencies.

1. The patient must be under the care of a physician who is legally authorized to practice and who is acting within the scope of his license. The physician may be the patient's private physician or a physician on the staff of the home health agency or a physician working under an arrangement with the institution which is the patient's residence or, if the agency is hospital-based, a physician on the hospital or agency staff.

2. No payment shall be made for home health services unless a face-to-face encounter has been performed by an approved practitioner, as outlined in this subsection, with the Medicaid individual within the 90 days before the start of the services or within the 30 days after the start of the services. The face-to-face encounter shall be related to the primary reason the Medicaid individual requires home health services.

a. The face-to-face encounter shall be conducted by one of the following approved practitioners:

(1) A physician licensed to practice medicine;

(2) A nurse practitioner or clinical nurse specialist within the scope of his practice under state law and working in collaboration with the physician who orders the Medicaid individual's services;

(3) A certified nurse midwife within the scope of his practice under state law;

(4) A physician assistant within the scope of his practice under state law and working under the supervision of the physician who orders the Medicaid individual's services; or

(5) For Medicaid individuals admitted to home health immediately after an acute or post-acute stay, the attending acute or post-acute physician.

b. The practitioner performing the face-to-face encounter shall document the clinical findings of the encounter in the Medicaid individual's record and communicate the clinical findings of the encounter to the ordering physician.

c. Face-to-face encounters may occur through telehealth, which shall not include by phone or email.

2. 3. When a patient is admitted to home health services a start-of-care comprehensive assessment must be completed no later than five calendar days after the start of care date.

3. 4. Services shall be furnished under a written plan of care and must be established and periodically reviewed by a physician. The requested services or items must be necessary to carry out the plan of care and must be related to the patient's condition. The initial plan of care (certification) must be reviewed by the attending physician, or physician designee. The physician must sign the initial certification before the home health agency may bill DMAS.

4. 5. A physician shall review and recertify the plan of care every 60 days. A physician recertification shall be performed within the last five days of each current 60-day certification period, (i.e., between and including days 56-60). The physician recertification statement must indicate the continuing need for services and should estimate how long home health services will be needed. The physician must sign the recertification before the home health agency may bill DMAS.

5. 6. The physician-orders for therapy services shall include the specific procedures and modalities to be used, identify the specific discipline to carry out the plan of care, and indicate the frequency and duration for services.

6. 7. A written physician's statement located in the medical record must certify that:

a. The patient needs licensed nursing care, home health aide services, physical or occupational therapy, or speech-language pathology services;

b. A plan for furnishing such services to the individual has been established and is periodically reviewed by a physician; and

c. These services were furnished while the individual was under the care of a physician.

7. 8. The plan of care shall contain at least the following information:

a. Diagnosis and prognosis;

b. Functional limitations;

c. Orders for nursing or other therapeutic services;

d. Orders for home health aide services, when applicable;

e. Orders for medications and treatments, when applicable;

f. Orders for special dietary or nutritional needs, when applicable; and

g. Orders for medical tests, when applicable, including laboratory tests and x-rays.

E. Utilization review shall be performed by DMAS to determine if services are appropriately provided and to ensure that the services provided to Medicaid recipients are medically necessary and appropriate. Such post payment review audits may be unannounced. Services not specifically documented in patients' medical records as having been rendered shall be deemed not to have been rendered and no reimbursement shall be provided.

F. All services furnished by a home health agency, whether provided directly by the agency or under arrangements with others, must be performed by appropriately qualified personnel. The following criteria shall apply to the provision of home health services:

1. Nursing services. Nursing services must be provided by a registered nurse or by a licensed practical nurse under the supervision of a graduate of an approved school of professional nursing and who is licensed as a registered nurse.

2. Home health aide services. Home health aides must meet the qualifications specified for home health aides by 42 CFR 484.36. Home health aide services may include assisting with personal hygiene, meal preparation and feeding, walking, and taking and recording blood pressure, pulse, and respiration. Home health aide services must be provided under the general supervision of a registered nurse. A recipient may not receive duplicative home health aide and personal care aide services.

3. Rehabilitation services. Services shall be specific and provide effective treatment for patients' conditions in accordance with accepted standards of medical practice. The amount, frequency, and duration of the services shall be reasonable. Rehabilitative services shall be provided with the expectation, based on the assessment made by physicians of patients' rehabilitation potential, that the condition of patients will improve significantly in a reasonable and generally predictable period of time, or shall be necessary to the establishment of a safe and effective maintenance program required in connection with the specific diagnosis.

a. Physical therapy services shall be directly and specifically related to an active written plan of care approved by a physician after any needed consultation with a physical therapist licensed by the Board of Physical Therapy. The services shall be of a level of complexity and sophistication, or the condition of the patient shall be of a nature that the services can only be performed by a physical therapist licensed by the Board of Physical Therapy, or a physical therapy assistant who is licensed by the Board of Physical Therapy and is under the direct supervision of a physical therapist licensed by the Board of Physical Therapy. When physical therapy services are provided by a qualified physical therapy assistant, such services shall be provided under the supervision of a qualified physical therapist who makes an onsite supervisory visit at least once every 30 days. This supervisory visit shall not be reimbursable.

b. Occupational therapy services shall be directly and specifically related to an active written plan of care approved by a physician after any needed consultation with an occupational therapist registered and licensed by the National Board for Certification in Occupational Therapy and licensed by the Virginia Board of Medicine. The services shall be of a level of complexity and sophistication, or the condition of the patient shall be of a nature that the services can only be performed by an occupational therapist registered and licensed by the National Board for Certification in Occupational Therapy and licensed by the Virginia Board of Medicine, or an occupational therapy assistant who is certified by the National Board for Certification in Occupational Therapy under the direct supervision of an occupational therapist as defined above in this subdivision. When occupational therapy services are provided by a qualified occupational therapy assistant, such services shall be provided under the supervision of a qualified occupational therapist, as defined above in this subdivision, who makes an onsite supervisory visit at least once every 30 days. This supervisory visit shall not be reimbursable.

c. Speech-language pathology services shall be directly and specifically related to an active written plan of care approved by a physician after any needed consultation with a speech-language pathologist licensed by the Virginia Department of Health Professions, Virginia Board of Audiology and Speech-Language Pathology. The services shall be of a level of complexity and sophistication, or the condition of the patient shall be of a nature that the services can only be performed by a speech-language pathologist licensed by the Virginia Department of Health Professions, Virginia Board of Audiology and Speech-Language Pathology.

4. A visit shall be defined as the duration of time that a nurse, home health aide, or rehabilitation therapist is with a client to provide services prescribed by a physician and that are covered home health services. Visits shall not be defined in measurements or increments of time.

Title of Regulation: 14VAC5-120. Rules Governing the Implementation of the Individual Accident and Sickness Insurance Minimum Standards Act with Respect to Specified Disease Policies (amending 14VAC5-120-70).

Statutory Authority: §§ 12.1-13 and 38.2-223 of the Code of Virginia.

Effective Date: July 1, 2017.

Agency Contact: Elsie Andy, Principal Insurance Market Examiner, Life and Health Division, Bureau of Insurance, State Corporation Commission, P.O. Box 1157, Richmond, VA 23218, telephone (804) 371-9072, FAX (804) 371-9944, or email elsie.andy@scc.virginia.gov.

Summary:

The amendments (i) align the indemnity coverage benefits for various types of therapies used to treat cancer with a more flexible benefit and payment structure applicable to specified disease policies and (ii) reflect more up-to-date protocols and services for cancer treatment.

AT RICHMOND, MAY 16, 2017

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. INS-2017-00032

Ex Parte: In the matter of Amending the Rules Governing
the Implementation of the Individual Accident and Sickness
Insurance Minimum Standards Act with Respect to Specified
Disease Policies

ORDER ADOPTING REVISIONS TO RULES

On March 16, 2017, the State Corporation Commission ("Commission") issued an Order to Take Notice ("Order") to consider revisions to the Rules Governing the Implementation of the Individual Accident and Sickness Insurance Minimum Standards Act with Respect to Specified Disease Policies set forth in Chapter 120 of Title 14 of the Virginia Administrative Code ("Rules").

The proposal to amend the Rules at 14 VAC 5-120-70 was submitted to the Bureau of Insurance ("Bureau") by American Family Life Assurance Company ("Aflac"), through its counsel. The proposed amendments align the indemnity coverage benefits for various types of therapies used to treat cancer with a more flexible benefit and payment structure. Specifically, amendments to subdivisions 2 c (1) and (2) of section 70 of the Rules reflect more up-to-date protocols and services for cancer treatment. The Bureau reviewed and agreed with the proposal to amend the Rules in accordance with Aflac's request.

The Order required that on or before May 5, 2017, any person requesting a hearing on the amendments to the Rules shall have filed such request for a hearing with the Clerk of the Commission ("Clerk").  No request for a hearing was filed with the Clerk.

The Order also required any interested persons to file with the Clerk their comments in support of or in opposition to the amendments to the Rules on or before May 5, 2017. No comments were filed with the Clerk.

NOW THE COMMISSION, having considered the proposed amendments to the Rules, is of the opinion that the attached amendments to the Rules should be adopted.

Accordingly, IT IS ORDERED THAT:

(1) The amendments to the Rules Governing the Implementation of the Individual Accident and Sickness Insurance Minimum Standards Act with Respect to Specified Disease Policies at Chapter 120 of Title 14 of the Virginia Administrative Code, which amend the Rules at 14 VAC 5-120-70, and which are attached hereto and made a part hereof, are hereby ADOPTED to be effective July 1, 2017.

(2) The Bureau forthwith shall give notice of the adoption of the amendments to the Rules to all insurers licensed by the Commission to write accident and sickness insurance in the Commonwealth of Virginia, and to all interested persons.

(3) The Commission's Division of Information Resources forthwith shall cause a copy of this Order, together with the final amended Rules, to be forwarded to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(4) The Commission's Division of Information Resources shall make available this Order and the attached amendments to the Rules on the Commission's website: http://www.scc.virginia.gov/case.

(5) The Bureau shall file with the Clerk of the Commission an affidavit of compliance with the notice requirements of Ordering Paragraph (2) above.

(6) This case is dismissed, and the papers herein shall be placed in the file for ended causes.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to: Kiva B. Pierce, Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 N. 9th Street, 8th Floor, Richmond, Virginia 23219-3424; and a copy hereof shall be delivered to the Commission's Office of General Counsel and the Bureau of Insurance in care of Deputy Commissioner Julie Blauvelt.

14VAC5-120-70. Specified disease minimum benefit standards.

No specified disease policy shall be delivered or issued for delivery in this Commonwealth which that does not meet the following minimum benefit standards. If the policy does not meet the required minimum standards, it shall not be offered for sale. These are minimum benefit standards and do not preclude the inclusion of other benefits which that are not inconsistent with these standards.

1. Minimum benefit standards applicable to non-cancer coverage:

a. A policy must provide coverage for each person insured under the policy on an expense incurred basis for a specifically named disease(s). This coverage must be in amounts not in excess of the usual and customary charges, with a deductible amount not in excess of $250, an overall aggregate benefit limit of not less than $5,000, a uniform percentage of covered expenses that the insurer will pay of not less than 20% in increments of 10%, no inside benefit limits and a benefit period of not less than two years for at least the following:

(1) Hospital room and board and any other hospital furnished medical services or supplies;

(2) Treatment by a legally qualified physician or surgeon;

(3) Private duty services of a registered nurse (R.N.);

(4) X-ray, radium and other therapy procedures used in diagnosis and treatment;

(5) Professional ambulance for local service to or from a local hospital;

(6) Blood transfusions, including expense incurred for blood donors;

(7) Drugs and medicines prescribed by a physician;

(8) The rental of an iron lung or similar mechanical apparatus;

(9) Braces, crutches and wheel chairs as are deemed necessary by the attending physician for the treatment of the disease;

(10) Emergency transportation if in the opinion of the attending physician it is necessary to transport the insured to another locality for treatment of the disease; and

(11) May include coverage of any other expenses necessarily incurred in the treatment of the disease; or

b. A policy must provide coverage for each person insured under the policy for a specifically named disease(s) with no deductible amount, and an overall aggregate benefit limit of not less than $25,000 payable at the rate of not less than $50 a day while confined in a hospital and a benefit period of not less than 500 days; or

c. A policy must provide lump-sum indemnity coverage of at least $1,000. It must provide benefits which that are payable as a fixed, one-time payment made within 30 days of submission to the insurer of proof of diagnosis of the specified disease(s). Dollar benefits shall be offered for sale only in even increments of $100 (i.e., $1,100, $1,200, $1,300 . . .).

Where coverage is advertised or otherwise represented to offer generic coverage of a disease(s) (e.g., "heart disease insurance"), the same dollar amounts must be payable regardless of the particular subtype of the disease. However, in the case of clearly identifiable subtypes with significantly lower treatment costs, lesser amounts may be payable so long as the policy clearly differentiates that subtype and its benefits.

2. Minimum benefit standards applicable to cancer only or cancer combination coverage:

a. A policy must provide coverage for each person ensured under the policy for cancer-only coverage or in combination with one or more other specified diseases on an expense incurred basis for services, supplies, care and treatment that are ordered or are prescribed by a physician as necessary for the treatment of cancer. This coverage must be in amounts not in excess of the usual and customary charges, with a deductible amount not in excess of $250, an overall aggregate benefit limit of not less than $10,000, a uniform percentage of covered expenses that the insurer will pay of not less than 20% in increments of 10%, no inside benefit limits and a benefit period of not less than three years for at least the following:

(1) Treatment by, or under the direction of, a legally qualified physician or surgeon;

(2) X-ray, radium, chemotherapy and other therapy procedures used in diagnosis and treatment;

(3) Hospital room and board and any other hospital furnished medical services or supplies;

(4) Blood transfusions, and the administration thereof, including expense incurred for blood donors;

(5) Drugs and medicines prescribed by a physician;

(6) Professional ambulance for local service to or from a local hospital;

(7) Private duty services of a registered nurse (R.N.) provided in a hospital; and

(8) May include coverage of any other expenses necessarily incurred in the treatment of the disease; or

b. A policy must provide benefits for each person insured under the policy for the following:

(1) Hospital confinement in an amount of at least $100 per day for at least 500 days;

(2) Surgical expenses not to exceed an overall lifetime maximum of $3,500; and

(3) Radium, cobalt, chemotherapy, or X-ray x-ray therapy expenses as an outpatient to at least $1,000. Such therapy benefit shall be restored after an insured is treatment or hospitalization free for at least 12 months; or

c. A policy must provide per diem indemnity coverage.

(1) Such coverage must provide covered persons:

(a) A fixed-sum payment of at least $100 for each day of hospital confinement for at least 365 days; and

(b) A fixed-sum payment equal to at least ½ the hospital inpatient benefit for each day of hospital or non-hospital inpatient or outpatient surgery, chemotherapy and radiation therapy for at least 365 days of treatment; and

(c) A fixed-sum payment made on the basis of a specified period of time for any chemotherapy, radiation therapy, or other similar therapy used to treat the disease.

(2) Benefits tied to confinement in a skilled nursing home facility or to receipt of home health care are optional. If a policy offers these benefits, they it must equal the following provide:

(a) A fixed-sum payment equal to at least ¼ the hospital inpatient benefit for each day of skilled nursing home facility confinement for at least 100 days; and

(b) A fixed-sum payment equal to at least ¼ the hospital inpatient benefit for each day of home health care for at least 100 days;.

(c) Notwithstanding any other provision of this chapter, any restriction or limitation applied to the benefits in subdivisions 2c(2)(a) 2 c (2) (a) and 2c(2)(b) above 2 c (2) (b), whether by definition or otherwise, shall be no more restrictive than those under Medicare; or

d. A policy must provide lump-sum indemnity coverage of at least $1,000. It must provide benefits which that are payable as a fixed, one-time payment made within 30 days of submission to the insurer of proof of diagnosis of the specified disease(s). Dollar benefits shall be offered for sale only in even increments of $100 (i.e., $1,100, $1,200, $1,300 . . .).

Where coverage is advertised or otherwise represented to offer generic coverage of a disease(s) (e.g., "cancer insurance"), the same dollar amounts must be payable regardless of the particular subtype of the disease (e.g., lung or bone cancer). However, in the case of clearly identifiable subtypes with significantly lower treatment costs (e.g., skin cancer), lesser amounts may be payable so long as the policy clearly differentiates that subtype and its benefits.

Title of Regulation: 18VAC90-50. Regulations Governing the Licensure of Massage Therapists (amending 18VAC90-50-40, 18VAC90-50-60, 18VAC90-50-70, 18VAC90-50-75, 18VAC90-50-90).

Statutory Authority: §§ 54.1-2400 and 54.1-3005 of the Code of Virginia.

Public Hearing Information:

July 18, 2017 - 10 a.m. - Conference Center, Perimeter Center, 9960 Mayland Drive, Suite 201 Richmond, VA 23233

Public Comment Deadline: August 11, 2017.

Agency Contact: Jay P. Douglas, R.N., Executive Director, Board of Nursing, 9960 Mayland Drive, Suite 300, Richmond, VA 23233-1463, telephone (804) 367-4520, FAX (804) 527-4455, or email jay.douglas@dhp.virginia.gov.

Basis: Section 54.1-2400 of the Code of Virginia authorizes the Board of Nursing to promulgate regulations to administer the regulatory system. The specific authorization to promulgate regulations for massage therapists is found in Chapter 30 (§ 54.1-3000 et seq.) of Title 54.1 of the Code of Virginia.

Purpose: Over the years since initial certification, massage therapy has evolved as a health care profession. In 2016, legislation passed in the General Assembly changing the level of regulation from certification to licensure. In the periodic review of 18VAC90-50, it was noted that there needs to be more assurance of ethical behavior and accountability for unprofessional conduct. Accordingly, the board proposes to add a requirement for initial licensure that an applicant has read the laws and regulations and will comply with the code of ethics for the profession. Additionally, the board proposes to add several new provisions to the disciplinary section regarding boundary violations, falsification of records, reporting of abuse, and patient confidentiality. Greater oversight and accountability will benefit the health, safety, and welfare of clients who avail themselves of massage therapy services.

Substance: In a separate action, the board amended 18VAC90-50 to conform the regulation to the statutory change from certification to licensure of massage therapists, pursuant to Chapter 324 of the 2016 Acts of Assembly. In accordance with § 2.2-4006 A 4 a of the Code of Virginia, that action was exempt from the requirements of the Administrative Process Act (§2.2-4000 et seq. of the Code of Virginia).

In addition to changing all references from certification to licensure and adding the requirement for a criminal background for all applicants, the board published a Notice of Intended Regulatory Action. After conducting a review of all sections of 18VAC90-50 and the public comment received in response to the Notice of Periodic Review, the Advisory Board on Massage Therapy recommended and the Board of Nursing identify the following provisions being considered for amendment:

18VAC90-50-40 Initial certification: Amend to (i) require attestation of having read and that the applicant will comply with laws and regulations and the professional code of ethics relating to massage therapy and (ii) require certification of equivalency for education obtained in another country from a credentialing body acceptable to the board.

18VAC90-50-60 Provisional certification: Amend to: (i) clarify that someone is eligible for a provisional license when he has filed a completed application, including completion of educational requirement, while waiting to take the licensing examination and (ii) specify that no more than one provisional license may be granted.

18VAC90-50-70 Renewal of certification: Clarify that if a license is lapsed, one may not use the title of massage therapist and may not practice massage therapy.

18VAC90-50-80 Continuing competency requirements: Amend to expand the listing of approved providers of continuing education.

18VAC90-50-90 Disciplinary provisions: Amend to include grounds for disciplinary action currently found in other nursing regulations but missing in 18VAC90-50 for licensed massage therapists.

Issues: The primary advantage to the public is the greater protection for the citizens of the Commonwealth who receive massage therapy services; additional grounds for disciplinary action will further protect the privacy of patient information and protect clients from exploitation by fraud, misrepresentation, or duress. There are no disadvantages.

There are no advantages or disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. As a result of the periodic review of regulations, the Board of Nursing (Board) proposes to amend the Regulations Governing the Licensure of Massage Therapists to: 1) offer additional options for completing continuing education; 2) explicitly include additional provisions to the standards of conduct, the violation of which may subject a licensee to disciplinary action; 3) require an attestation of compliance with laws and ethics for initial licensure; and 4) amend language for clarity.

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

Estimated Economic Impact.

Continuing Education Options: In order to renew a license biennially, a licensed massage therapist must complete at least 24 hours of continuing education or learning activities. Under the current regulation, a minimum of 12 of the 24 hours must be in activities or courses provided by a National Certification Board for Therapeutic Massage and Bodywork-approved provider. The Board proposes to allow activities or courses provided by the following organizations as well: 1) Federation of State Massage Therapy Boards, 2) American Massage Therapy Association, 3) Associated Bodywork and Massage Professionals, 4) Commission on Massage Therapy Accreditation, 5) a nationally or regionally accredited school or program of massage therapy, and 6) a school of massage therapy approved by the State Council of Higher Education for Virginia. The addition of approved providers would potentially be beneficial for licensees in that they may be able to obtain coursework at a lower cost and there may be greater opportunity to become more professionally qualified in specialty areas of practice.

Unprofessional Conduct: § 54.1-3007 of the Code of Virginia authorizes the Board to take disciplinary action for unprofessional conduct. However, it does not define unprofessional conduct. The current regulation states that unprofessional conduct shall mean, but shall not be limited to:

a. Performing acts which constitute the practice of any other health care profession for which a license or a certificate is required or acts which are beyond the limits of the practice of massage therapy as defined in § 54.1-3000 of the Code of Virginia;

b. Assuming duties and responsibilities within the practice of massage therapy without adequate training or when competency has not been maintained;

c. Failing to acknowledge the limitations of and contraindications for massage and bodywork or failing to refer patients to appropriate health care professionals when indicated;

d. Entering into a relationship with a patient or client that constitutes a professional boundary violation in which the massage therapist uses his professional position to take advantage of the vulnerability of a patient, a client, or his family, to include but not be limited to actions that result in personal gain at the expense of the patient or client, a nontherapeutic personal involvement or sexual conduct with a patient or client;

e. Falsifying or otherwise altering patient or employer records;

f. Violating the privacy of patients or the confidentiality of patient information unless required to do so by law;

g. Employing or assigning unqualified persons to practice under the title of "massage therapist" or "licensed massage therapist";

h. Engaging in any material misrepresentation in the course of one's practice as a massage therapist; or

i. Failing to practice in a manner consistent with the code of ethics of the NCBTMB, as incorporated by reference into this chapter with the exception of the requirement to follow all policies, procedures, guidelines, regulations, codes, and requirements promulgated by the NCBTMB.

The Board proposes to add the following five provisions to the list:

1) obtaining money or property of a patient or client by fraud, misrepresentation or duress;

2) violating state laws relating to the privacy of patient information, including but not limited to § 32.1-127.1:03 of the Code of Virginia;

3) failing to report evidence of child abuse or neglect as required in § 63.2-1509 of the Code of Virginia or elder abuse or neglect as required in § 63.2-1606 of the Code of Virginia;

4) providing false information to staff or board members in the course of an investigation or proceeding; and

5) violating any provision of this chapter.

All five of the proposed additional provisions are listed as actions that are considered unprofessional conduct for nurses in the Board's Regulations Governing the Practice of Nursing (18 VAC 90-19). Since the five additional provisions can in practice be considered unprofessional practice,¹ adding them explicitly to the regulation is beneficial in that it improves clarity for massage therapists and other readers of the regulation. It may also reduce the likelihood that massage therapists unintentionally violate the law through ignorance of § 32.1-127.1:03, § 63.2-1509, or § 63.2-1606 of the Code of Virginia.

Attestation of Compliance: The Board proposes to add to the requirements for initial licensure as a massage therapist that the applicant "attest that he has read and will comply with laws and regulations and the professional Code of Ethics relating to massage therapy." This proposal may be moderately beneficial in that it may: 1) increase the likelihood that new massage therapists are consciously aware of the specifics of the applicable laws and regulations and the professional Code of Ethics, and 2) reduce the likelihood that new massage therapists inadvertently violate applicable laws and regulations and the professional Code of Ethics.

Clarification: Improving the clarity of the regulation would potentially also be beneficial to the extent that it reduces the likelihood that readers of the regulation misunderstand applicable rules and requirements.

Businesses and Entities Affected. The proposed amendments potentially affect the 8,178 licensed massage therapists in the Commonwealth,² future licensure applicants, and providers of continuing education. Most licensed massage therapists likely operate as a small business or are employed by small businesses. Most providers of continuing education are also likely small businesses.

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

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect total employment. The proposal to allow activities or courses provided by additional organizations to count toward continuing education hours may alter where licensed massage therapists obtain their continuing education. This may moderately affect the distribution of employment across continuing education providers.

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

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

Small Businesses:

Definition. Pursuant 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."

Costs and Other Effects. The proposal to allow activities or courses provided by additional organizations to count toward continuing education hours may lower costs for some massage therapists and their associated small firms.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

____________________________

¹The Code of Virginia authorizes the Board to take disciplinary action for unprofessional conduct. All of the additional provisions can reasonably be considered unprofessional conduct. In fact, all of the additional provisions are specified as unprofessional conduct in the Board's Regulations Governing the Practice of Nursing. The Regulations Governing the Licensure of Massage Therapists states that "unprofessional conduct which shall mean, but shall not be limited to:" followed by the current list. Thus, the five additional provisions can in practice currently be considered unprofessional practice

²Data source: Department of Health Professions

Agency's Response to Economic Impact Analysis: The Board of Nursing concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed amendments (i) offer additional options for completion of continuing education, (ii) require an attestation of compliance with laws and ethics for initial licensure, (iii) add provisions to the standards of conduct that may subject a licensee to disciplinary action, (iv) clarify eligibility for provisional licensure, and (v) clarify the effect of a lapsed license.

Part II
Requirements for Licensure

18VAC90-50-40. Initial licensure.

A. An applicant seeking initial licensure shall submit a completed application and required fee and verification of meeting the requirements of § 54.1-3029 A of the Code of Virginia as follows:

1. Is at least 18 years old;

2. Has successfully completed a minimum of 500 hours of training from a massage therapy program certified or approved by the State Council of Higher Education for Virginia or an agency in another state, the District of Columbia, or a United States territory that approves educational programs, notwithstanding the provisions of § 23-276.2 23.1-226 of the Code of Virginia;

3. Has passed the Licensing Examination of the Federation of State Massage Therapy Boards, or an exam deemed acceptable to the board;

4. Has not committed any acts or omissions that would be grounds for disciplinary action or denial of certification as set forth in § 54.1-3007 of the Code of Virginia and 18VAC90-50-90; and

5. Has completed a criminal history background check as required by § 54.1-3005.1 of the Code of Virginia.

B. An applicant shall attest that he has read and will comply with laws and regulations and the professional code of ethics relating to massage therapy.

B. C. An applicant who has been licensed or certified in another country and who, in the opinion of the board, meets provides certification of equivalency to the educational requirements in Virginia from a credentialing body acceptable to the board shall take and pass an examination as required in subsection A of this section in order to become licensed.

18VAC90-50-60. Provisional licensure.

A. An eligible candidate who has filed a completed application for licensure in Virginia, including completion of education requirements, may engage in the provisional practice of massage therapy in Virginia while waiting to take the licensing examination for a period not to exceed 90 days upon from the date on the written authorization from the board. A provisional license may be issued for one 90-day period and may not be renewed.

B. The designation of "massage therapist" or "licensed massage therapist" shall not be used by the applicant during the 90 days of provisional licensure.

C. An applicant who fails the licensing examination shall have his provisional licensure withdrawn upon the receipt of the examination results and shall not be eligible for licensure until he passes such examination.

Part III
Renewal and Reinstatement

18VAC90-50-70. Renewal of licensure.

A. Licensees born in even-numbered years shall renew their licenses by the last day of the birth month in even-numbered years. Licensees born in odd-numbered years shall renew their licenses by the last day of the birth month in odd-numbered years.

B. The licensee shall complete the renewal form and submit it with the required fee and attest that he has complied with continuing competency requirements of 18VAC90-50-75.

C. Failure to receive the application for renewal shall not relieve the licensed massage therapist of the responsibility for renewing the license by the expiration date.

D. The license shall automatically lapse by the last day of the birth month if not renewed, and the practice of massage therapy or use of the title "massage therapist" or "licensed massage therapist" is prohibited.

18VAC90-50-75. Continuing competency requirements.

A. In order to renew a license biennially, a licensed massage therapist shall:

1. Hold current certification by the NCBTMB; or

2. Complete at least 24 hours of continuing education or learning activities with at least one hour in professional ethics. Hours chosen shall be those that enhance and expand the skills and knowledge related to the clinical practice of massage therapy and may be distributed as follows:

a. A minimum of 12 of the 24 hours shall be in activities or courses provided by an NCBTMB-approved provider one of the following providers and may include seminars, workshops, home study courses, and continuing education courses:

(1) NCBTMB;

(2) Federation of State Massage Therapy Boards;

(3) American Massage Therapy Association;

(4) Associated Bodywork and Massage Professionals;

(5) Commission on Massage Therapy Accreditation;

(6) A nationally or regionally accredited school or program of massage therapy; or

(7) A school of massage therapy approved by the State Council of Higher Education for Virginia.

b. No more than 12 of the 24 hours may be activities or courses that may include consultation, independent reading or research, preparation for a presentation, a course in cardiopulmonary resuscitation, or other such experiences that promote continued learning.

B. A massage therapist shall be exempt from the continuing competency requirements for the first biennial renewal following the date of initial licensure in Virginia.

C. The massage therapist shall retain in his records the completed form with all supporting documentation for a period of four years following the renewal of an active license.

D. The board shall periodically conduct a random audit of licensees to determine compliance. The persons selected for the audit shall provide evidence of current NCBTMB certification or the completed continued competency form provided by the board and all supporting documentation within 30 days of receiving notification of the audit.

E. Failure to comply with these requirements may subject the massage therapist to disciplinary action by the board.

F. The board may grant an extension of the deadline for continuing competency requirements, for up to one year, for good cause shown upon a written request from the licensee prior to the renewal date.

G. The board may grant an exemption for all or part of the requirements for circumstances beyond the control of the licensee, such as temporary disability, mandatory military service, or officially declared disasters.

Part IV
Disciplinary Provisions

18VAC90-50-90. Disciplinary provisions.

The board has the authority to deny, revoke, or suspend a license issued by it or to otherwise discipline a licensee upon proof that the practitioner has violated any of the provisions of § 54.1-3007 of the Code of Virginia or of this chapter or has engaged in the following:

1. Fraud or deceit, which shall mean, but shall not be limited to:

a. Filing false credentials;

b. Falsely representing facts on an application for initial licensure, or reinstatement or renewal of a license; or

c. Misrepresenting one's qualifications including scope of practice.

2. Unprofessional conduct, which shall mean, but shall not be limited to:

a. Performing acts which that constitute the practice of any other health care profession for which a license or a certificate is required or acts which that are beyond the limits of the practice of massage therapy as defined in § 54.1-3000 of the Code of Virginia;

b. Assuming duties and responsibilities within the practice of massage therapy without adequate training or when competency has not been maintained;

c. Failing to acknowledge the limitations of and contraindications for massage and bodywork or failing to refer patients to appropriate health care professionals when indicated;

d. Entering into a relationship with a patient or client that constitutes a professional boundary violation in which the massage therapist uses his professional position to take advantage of the vulnerability of a patient, a client, or his family, to include but not be limited to actions that result in personal gain at the expense of the patient or client, a nontherapeutic personal involvement, or sexual conduct with a patient or client;

e. Falsifying or otherwise altering patient or employer records;

f. Violating the privacy of patients or the confidentiality of patient information unless required to do so by law;

g. Employing or assigning unqualified persons to practice under the title of "massage therapist" or "licensed massage therapist";

h. Engaging in any material misrepresentation in the course of one's practice as a massage therapist; or

i. Obtaining money or property of a patient or client by fraud, misrepresentation, or duress;

j. Violating state laws relating to the privacy of patient information, including § 32.1-127.1:03 of the Code of Virginia;

k. Providing false information to staff or board members in the course of an investigation or proceeding;

l. Failing to report evidence of child abuse or neglect as required by § 63.2-1509 of the Code of Virginia or elder abuse or neglect as required by § 63.2-1606 of the Code of Virginia;

m. Violating any provision of this chapter; or

n. Failing to practice in a manner consistent with the code of ethics of the NCBTMB, as incorporated by reference into this chapter with the exception of the requirement to follow all policies, procedures, guidelines, regulations, codes, and requirements promulgated by the NCBTMB.

Title of Regulation: 20VAC5-318. Rules Governing the Evaluation, Measurement, and Verification of the Effects of Utility-Sponsored Demand-Side Management Programs (adding 20VAC5-318-10 through 20VAC5-318-60).

Statutory Authority: §§ 12.1-13 and 56-585.1 of the Code of Virginia.

Public Hearing Information:

September 8, 2017 - 9 a.m. - State Corporation Commission, 1300 East Main Street, 2nd Floor, Courtroom, Richmond, VA 23219

Public Comment Deadline: July 28, 2017.

Agency Contact: David Dalton, Utilities Analyst, Public Utility Regulation Division, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9634, FAX (804) 371-9350, or email david.dalton@scc.virginia.gov.

Summary:

The proposed new chapter establishes minimum requirements related to evaluating, measuring, and verifying the effects of utility-sponsored demand-side management programs consisting of demand response and energy efficiency measures.

AT RICHMOND, MAY 16, 2017

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. PUR-2017-00047

Ex Parte: In the matter of Adopting
New Rules Governing the Evaluation,
Measurement, and Verification of the
Effects of Utility-Sponsored Demand-Side
Management Programs

ORDER FOR NOTICE AND HEARING

On November 30, 2016, the State Corporation Commission ("Commission") issued an Order on Evaluation in Case No. PUE-2016-00022¹ wherein it directed the Commission Staff ("Staff") to draft proposed rules governing the evaluation, measurement, and verification of the effects of utility-sponsored demand-side management programs of general applicability to both electric and natural gas utilities ("Proposed Rules"). The Staff has prepared the Proposed Rules, which are attached hereto.

NOW THE COMMISSION, upon consideration of this matter, is of the opinion and finds that the Proposed Rules should be considered for adoption; public notice of the Proposed Rules should be given; an opportunity for interested persons and entities to provide input through written and/or oral comments on the Proposed Rules should be provided; and a public hearing should be scheduled for the receipt of oral comments on the Proposed Rules.

Accordingly, IT IS ORDERED THAT:

(1) This matter is docketed and assigned Case No. PUR-2017-00047.

(2) The proposed new rules entitled "Rules Governing the Evaluation, Measurement, and Verification of the Effects of Utility-Sponsored Demand-Side Management Programs," recommended to be set out at 20VAC5-318-10 through 20VAC5-318-60, are attached hereto and made a part of this Order for Notice and Hearing.

(3) The Clerk of the Commission is hereby directed to provide a copy of this Order for Notice and Hearing, together with the Proposed Rules, to the following: Virginia Department of Mines, Minerals and Energy; Virginia Electric and Power Company; Appalachian Power Company; Kentucky Utilities Company d/b/a Old Dominion Power Company; Appalachian Natural Gas Distribution Company; Atmos Energy; Columbia Gas of Virginia, Inc.; Roanoke Gas Company; Southwestern Virginia Gas Company; Virginia Natural Gas, Inc.; Washington Gas Light Company; and the Office of the Attorney General, Division of Consumer Counsel.

(4) Within five (5) business days of the filing of this Order for Notice and Hearing with the Clerk of the Commission, the Staff shall transmit electronically or by first class mail copies of this Order for Notice and Hearing, together with the Proposed Rules, to persons and entities providing comments in Case No. PUE-2016-00022 and any other persons or entities identified by the Staff as potentially having an interest in this matter. The Staff shall promptly file with the Clerk of the Commission a certificate of transmission or mailing and include a list of names and addresses of the persons and entities to whom the Order for Notice and Hearing was transmitted or mailed.

(5) The Commission's Division of Information Resources forthwith shall cause a copy of this Order for Notice and Hearing, together with the Proposed Rules, to be forwarded to the Virginia Registrar of Regulations for appropriate publication in the Virginia Register of Regulations.

(6) The Commission's Division of Information Resources promptly shall post a copy of this Order for Notice and Hearing, together with the Proposed Rules, on the Commission's website.

(7) On or before July 28, 2017, any interested person may file written comments on the Proposed Rules with Joel H. Peck, Clerk, State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. Any interested person desiring to submit comments electronically may do so on or before July 28, 2017, by following the instructions found on the Commission's website: http://www.scc.virginia.gov/case. Compact disks or any other form of electronic storage medium may not be filed with the comments.  All comments shall refer to Case No. PUR-2017-00047.

(8) On or before August 11, 2017, the Staff shall file with the Clerk of the Commission an original and fifteen (15) copies of a Staff Report concerning comments submitted to the Commission addressing the Proposed Rules.

(9) A public hearing shall be convened on September 8, 2017, at 9 a.m., in the Commission's Courtroom, Second Floor, Tyler Building, 1300 East Main Street, Richmond, Virginia 23219, to receive comments regarding the Proposed Rules under consideration in this matter. Any person desiring to offer testimony as a public witness at this hearing should appear in the Commission's courtroom fifteen (15) minutes prior to the starting time of the hearing and identify himself or herself to the Commission's Bailiff. While no commenter is required to attend the public hearing, those persons or entities who filed written comments may attend the public hearing to provide a summary of their written comments, to add any further comments they may have, and to answer any questions the Commissioners may have regarding those comments.

(10) This matter is continued.

AN ATTESTED COPY hereof shall be sent by the Clerk of the Commission to all persons on the official Service List in this matter. The Service List is available from the Clerk of the State Corporation Commission, c/o Document Control Center, 1300 East Main Street, First Floor, Tyler Building, Richmond, Virginia 23219. A copy also shall be sent to the Commission's Office of General Counsel and Division of Public Utility Regulation.

_____________________________________________

¹ Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: In the matter of receiving input for evaluating the establishment of protocols, a methodology, and a formula to measure the impact of energy efficiency measures, Case No. PUE-2016-00022, Doc. Con. Cen. No. 161140091, Order on Evaluation (Nov. 30, 2016).

CHAPTER 318
RULES GOVERNING THE EVALUATION, MEASUREMENT, AND VERIFICATION OF THE EFFECTS OF UTILITY-SPONSORED DEMAND-SIDE MANAGEMENT PROGRAMS

20VAC5-318-10. Purpose and applicability.

A. This chapter sets forth minimum requirements for Virginia's utilities related to evaluating, measuring, and verifying the effects of utility-sponsored demand-side management (DSM) programs consisting of demand response and energy efficiency measures. This chapter should not be construed as limiting the ability of the commission or its staff to evaluate information in addition to or beyond that identified in this chapter or to use evaluation processes and procedures beyond those contained in this chapter.

B. This chapter shall apply to all public utilities seeking commission approval of a DSM program and to all public utilities with DSM programs that have received prior commission approval.

20VAC5-318-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Commission" means the Virginia State Corporation Commission.

"DSM" means demand-side management.

"EM&V" means evaluation, measurement, and verification.

"Emerging technologies" means technologies including automated measurement and verification software, advanced metering, building management systems, data analytics, and load monitoring systems.

20VAC5-318-30. Administrative procedures for evaluation, measurement, and verification planning and reporting.

A. A utility filing for implementation of new DSM measures or programs shall file a plan for the EM&V of the proposed measures or programs as part of its application.  Such plan shall comply with the standard requirements for planning filings contained in 20VAC5-318-40.

B. A utility reporting the results of DSM measures or programs shall comply with the standard requirements for EM&V reporting contained in 20VAC5-318-50.

20VAC5-318-40. Standard requirements for evaluation, measurement, and verification planning filings.

A. In all filings required by 20VAC5-318-30, the source of all data or estimates used as inputs for proposed DSM measures or programs, in descending order of preference, shall be:

1. Utility-specific data if available and practical;

2. Virginia-specific data if utility-specific data is unavailable or impractical. When Virginia-specific data is used, the utility shall provide an explanation as to why utility-specific data is unavailable or impractical;

3. Data from non-Virginia jurisdictions or sources, if neither utility-specific data nor Virginia-specific data is available or practical;

a. When data from non-Virginia jurisdictions or sources is used, the utility shall provide an explanation as to why utility-specific data is unavailable or impractical.

b. When data from non-Virginia jurisdictions or sources is used, the utility shall provide an explanation as to why Virginia-specific data is unavailable or impractical as well as the sources of all data, to include:

(1) Titles, version numbers, publication dates, and page numbers of all source documents, as appropriate; and

(2) An explanation as to why, in the utility's assessment, use of this data is appropriate.

B. EM&V planning documents shall include all workpapers, support documents, assumptions, and equations used in developing the proposed measures or programs.

C. EM&V planning documents shall include measure-level estimates of kilowatt, kilowatt-hour, and dekatherm savings as appropriate. An estimate that has been adjusted for free-ridership as well as an estimate that has not been adjusted for free-ridership should be included as appropriate.

D. EM&V planning documents for proposed DSM measures or programs shall include an explanation of eligibility requirements for each rate schedule to which the measures or programs are being offered and estimates of participation by customers taking service under each eligible rate schedule as appropriate.

E. EM&V planning documents for proposed DSM measures or programs shall include a comparison of the estimated annual measure or program savings to the annual usage of an average customer in each rate schedule to which the measures or programs are being offered. This will include calculation of the expected savings as a percentage of the annual usage of the eligible average customer.

F. EM&V planning documents for DSM measures or programs shall include a description of the controls to be used by the utility to verify proper installation of the proposed measures and programs, as appropriate. Additionally, plans shall require the contractors and subcontractors that will be implementing the measures or programs to record details of serviced or replaced equipment, to include at a minimum:

1. Nameplate efficiency ratings; and

2. Serial numbers.

G. Generally, EM&V planning proposals should comply with Options A, B, C, or D from the International Performance Measurement and Verification Protocol (March 2002). However, the commission recognizes that each utility has unique characteristics, and new or modified DSM measures are constantly being developed. As such, alternative methodologies may be considered with sufficient supporting documentation and explanation of appropriateness.

H. Utilities are encouraged to consider use of emerging technologies, including "advanced measurement and verification" or "evaluation, measurement and verification 2.0" when appropriate and cost effective.

20VAC5-318-50. Standard requirements for evaluation, measurement, and verification reporting.

A. Utility reporting of the results of its approved DSM measures or programs should be consistent with and contrasted to the EM&V plan set forth in the filings for approval of such measures or programs or as otherwise specified in a commission order approving such measures or programs. The commission recognizes that each utility has unique characteristics, and new or modified energy efficiency measures are constantly being developed. As such, alternative methodologies may be included in reporting provided that sufficient supporting documentation and explanation of appropriateness of alternative methodologies is provided.

B. EM&V reports concerning existing measures or programs shall utilize utility-specific data when updating the analysis of the cost effectiveness of each measure, program, or portfolio to the most accurate extent possible.

C. Any changes to or variances from originally filed inputs and assumptions shall be documented and explained.

D. EM&V reports shall describe the methodologies by which the measured data was collected, including at a minimum:

1. The sampling plan; and

2. Statistical calculations upon which the reported data is based.

E. EM&V reports for ongoing DSM measures or programs shall include an explanation of eligibility requirements for each rate schedule to which the measures or programs are being offered.

F. EM&V reports for ongoing DSM measures or programs shall include a comparison of the measured annual measure or program savings estimates to the annual usage of an average customer in each rate schedule to which the measures or programs is being offered. A comparison to originally submitted estimated savings for the measures or programs shall also be provided. This will include a calculation of the expected savings as a percentage of the annual usage of the eligible average customer.

G. EM&V reports for ongoing DSM measures or programs shall include a description of the controls undertaken by the utility to verify proper installation of the measures or programs, as appropriate. Additionally, reports shall include details provided by contractors or subcontractors of serviced or replaced equipment, to include at a minimum:

1. Nameplate efficiency ratings; and

2. Serial numbers.

20VAC5-318-60. Waiver.

The commission may waive any or all parts of this chapter for good cause shown.