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Developed and maintained by the Division of Legislative Automated Systems.
2005 SESSION
055270376Whereas, the Virginia Medicaid program is the largest of the Commonwealth's health care programs for persons who are poor; and
Whereas, it is the policy of the Commonwealth that persons who participate in the Medicaid program use their own assets to pay their share of the total cost of their care during or after their enrollment in the program in accordance with state and federal law; and
Whereas, there is growing concern that a number of persons seeking Medicaid eligibility are using provisions in federal and state laws or regulations to transfer assets in order to gain access to the program's benefits, thus preserving resources for their heirs; and
Whereas, stricter rules governing the transfer of assets for less than fair market value will discourage and deter voluntary impoverishment or, alternatively, result in payment penalties for these activities, thereby reducing medical assistance expenditures, including those for long-term care; and
Whereas, more thorough pursuit of resources that become available subsequent to Medicaid eligibility and more aggressive recovery from estates of deceased Medicaid recipients will also result in reduced medical assistance expenditures; now, therefore,
Be it enacted by the General Assembly of Virginia:
1. § 1. Medical assistance services; asset transfer limit waiver.
The Department of Medical Assistance Services [ shall
may
] , when appropriate and practicable, seek a waiver pursuant to § 1115 of the
Social Security Act (42 U.S.C. § 1315) from the Centers for Medicare and Medicaid
Services to establish asset transfer limits that are more restrictive than
those currently permitted under federal Medicaid law or regulations. This
waiver application may provide, insofar as it is not already included in the
state plan for medical assistance services pursuant to § 32.1-325, that (i)
transfer prohibitions would affect the transfer of all assets, including
certain excluded assets set forth in § 1613 of the Social Security Act (42
U.S.C. § 1382b), such as vehicles and valuable jewelry [ excluding
any wedding and engagement rings and each personal item valued less than $100
] ; (ii) eligibility for all medical assistance services shall be subject to
penalty periods for a calculated period for transfers of assets for less than
fair market value; (iii) all transfers of assets for less than fair market
value be subject to a 72-month look-back period; (iv) the transfer penalty
period for applicants shall commence at the beginning of the month in which a
person applies for medical assistance services or is otherwise eligible, or
when the Department of Medical Assistance Services becomes aware of the
transfer, whichever is later; (v) the transfer penalty period for recipients
shall commence at the beginning of the month in which the Department of Medical
Assistance Services becomes aware of the transfer and can give proper notice,
or the month following a period of ineligibility existing when the transfer was
made; (vi) the divisor used to calculate a penalty period shall be the
statewide average nursing facility payment made by the Department of Medical
Assistance Service in effect at the time the penalty is determined and the
penalty period begins, a figure that takes into consideration the income that
would otherwise be applied to cost of care in the post-eligibility process;
(vii) the transfer of the institutionalized person's interest in a homestead
even to specified relatives be prohibited, except that the homestead may retain
excluded status as long as the specified relatives continue to reside in the
household; (viii) transfers to spouses for less than fair market value after
eligibility for medical assistance services is established will be permitted
only to an amount allowed under spousal impoverishment asset provisions, so
that assets acquired by or made available to the institutionalized spouse after
medical assistance services are obtained would first be spent on the
institutionalized spouse's medical costs; (ix) permissible transfers of assets
to a disabled child would be limited to transfers into a trust for the child's
sole benefit that reverts to the Commonwealth after the death of the disabled
child, to recover medical assistance services payments made on behalf of either
the grantor or the beneficiary of the trust, or both; [ (x) transfers
to trusts for people with a disability who are under age 65 and who are not the
children, adopted children, or legal wards of the transferor would no longer be
permitted without penalty; and (xi) and (x)
] the Commonwealth would have discretion to designate some trust purposes as
invalid under § 1917 (c) or (d) of the Social Security Act, such as care for a
pet.
2. That, upon the approval by the Centers for Medicare
and Medicaid Services of any application for the asset transfer limit waiver [ that shall
be ] submitted by the Department of Medical Assistance Services
pursuant to this act, expeditious implementation of any asset transfer limits
shall be deemed to be an emergency situation pursuant to § 2.2-4002 of the
Administrative Process Act; therefore, to meet this emergency situation, the
Board shall adopt emergency regulations to implement the provisions of this
act.
3. That, in order to avoid the costs as much as possible during the regulatory process, the Board of Medical Assistance Services shall, when in compliance with the Administrative Process Act (§ 2.2-4000 et seq.), notify, distribute, and provide public access and opportunity for comment via electronic media, including, but not limited to, posting documents to and receiving comments via the Department's website, by e-mail and fax. The Board shall, however, continue to provide public notice and participation to those persons who do not have access to the Internet or to other forms of electronic media.
[ 4. That, prior to submitting any application for the asset transfer limit waiver, the Director of the Department of Medical Assistance Services shall report on the limits on asset transfers in the proposed waiver to the Chairmen of the House Committees on Appropriations and Health, Welfare and Institutions and the Senate Committees on Finance and Education and Health. ]