Senate Bill No. 338
(Senators Plymale, Bailey, Prezioso, Unger, Boley, Hunter, Rowe, Jenkins,
Caldwell and Kessler, original sponsors)
[Passed March 8, 2003; in effect ninety days from passage.]
AN ACT to amend chapter nine of the code of West Virginia, one
thousand nine hundred thirty-one, by adding thereto a new
article, designated article four-b, related to the creation of
a medicaid buy-in program for working individuals with
disabilities; establishing legislative intent; defining terms;
establishing criteria for participation in the program;
creating exceptions; establishing fees and premiums; providing
for periodic review; and requiring the secretary of the
department of health and human services to fulfill certain
reporting requirements, form an advisory counsel and propose
legislative and emergency rules.
Be it enacted by the Legislature of West Virginia:
That chapter nine of the code of West Virginia, one thousand,
nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article four-b, to read as follows:
ARTICLE 4B. MEDICAID BUY IN PROGRAM.
§9-4B-1. Legislative findings.
(a) The Legislature finds that there are many individuals in
this state who have disabilities that qualify them for state or
federal assistance and who are nonetheless willing and able to
enter the workforce, but do not do so out of fear of losing
essential medical care. As a result, the state realizes increased
costs in fully supporting these disabled individuals who, in turn,
suffer under an additional disability of being deprived of the
additional income, dignity and self-sufficiency derived by being
engaged in competitive employment.
(b) The Legislature finds that establishing a medicaid buy-in
program for certain individuals with disabilities will assist them
in becoming independent of public assistance by enabling them to
enter the workforce without fear of losing essential medical care.
As used in this article:
(1) "Approved accounts" means any retirement account that the
secretary has determined is not to be included as an asset in
determining the eligibility of an individual for participation in
the buy-in program. Approved accounts may include, but not be
limited to, private retirement accounts such as individual
retirement accounts; other individual accounts; and employer-sponsored retirement plans such as 401(k) plans, Keogh plans and
employer pension plans.
(2) "Basic coverage group" means an optional coverage group as
defined by the Ticket to Work and Work Incentives Improvement Act
(3) "Copayment" is a fixed fee to be paid by the patient at
the time of each office visit, outpatient service or filling of
(4) "Cost-sharing" means the eligible participant will
participate in the cost of the program by paying the enrollment
fee, monthly premiums and copayments if established by the
(5) "Countable income" means income that does not exceed two
hundred fifty percent of the federal poverty level: Provided, That
for purposes of this article, countable income does not include:
(A) The income of the individual's spouse, parent or guardian
with whom he or she resides; and
(B) Income disregarded under the state medicaid plan's
financial methodology, including income disregarded under the
federal supplemental security income program (42 U. S. C. §1382) as
impairment-related work expenses.
(6) "Countable resources" includes earned and unearned income:
Provided, That countable resources do not include:
(A) Liquid assets of up to five thousand dollars for an individual;
(B) Liquid assets of up to ten thousand dollars for a family;
(C) Retirement accounts; and
(D) Independence accounts;
(7) "Department" means the department of health and human
(8) "Disability" means a medically determinable physical or
mental condition that:
(A) Can be expected to result in death or has lasted, or can
be expected to last, for a continuous period of not less than
twelve months; and
(B) Renders a person unable to engage in substantial gainful
(C) Is a disability defined by social security administration
criteria and has been determined by either the social security
administration or the West Virginia department of health and human
(9) "Eligible buy-in participant" means an individual who:
(A) Is a resident of the state of West Virginia;
(B) Has a disability as defined herein;
(C) Is at least sixteen years of age and less than sixty-five
years of age;
(D) Is engaged in competitive employment, including self-
employment or nontraditional work that results in remuneration at or above minimum wage in an integrated setting;
(E) Has countable resources that do not exceed the resource
limits as defined in this article; and
(F) Has countable income that does not the income limits as
defined in this article.
(10) "Enrollment fee" means a one-time fee to participate in
the medicaid buy-in program.
(11) "Federal benefit rate" is the amount of monthly federal
or state benefits paid to persons with limited income and resources
who are age sixty-five or older, blind or disabled;
(12) "Federal poverty level" means the level of personal or
family income below which one is classified as poor according to
federal governmental standards, commonly referred to as the federal
poverty guidelines which are issued and printed each year in the
(13) "Income" means money earned from employment wages or
self-employment earnings and unearned money received from any other
(14) "Independence accounts" are department-approved accounts
established with the department solely by funds paid from the
earned income of an eligible buy-in participant to cover expenses
necessary to enhance or maintain his or her independence or
increase employment opportunities. Approved expenditures from the
funds may include: Educational expenses; work-related expenses; home purchase or modification; transportation; medical expenses;
assistive technology and related services; or for short-term living
expenses in times of qualified emergencies as determined by the
(15) "Liquid assets" are cash or assets payable in cash on
demand, including financial instruments that can be converted to
cash within twenty working days. For purposes of this article,
national, state and local holidays are not working days.
(16) "Premium" is a monthly fee paid by an eligible buy-in
participant to continue participation in the program.
(17) "Resources" are possessions that the eligible buy-in
participant owns that could be changed to cash and used for food,
clothing or shelter and that qualify as resources under the
applicable social security administration guidelines.
(18) "Retirement accounts" are moneys invested in approved
retirement funds and accounts that are disregarded as an asset by
the department in determining the eligibility of an individual for
participation in the buy-in program.
§9-4B-3. Medicaid buy-in program; funding.
(a) The medicaid buy-in program for working individuals with
disabilities is hereby established to provide medicaid benefits to
individuals who are disabled and employed, as authorized under
Section 201 of the federal Ticket to Work and Work Incentives
Improvement Act of 1999 (P.L. 106-170, 42 U. S. C. 1396, et seq.). The medicaid buy-in program shall become effective as of the first
day of July, two thousand three.
(b) Funding for the buy-in program shall be from funds
appropriated by the Legislature, premiums paid, enrollment fees and
any federal matching funding available to the program.
§9-4B-4. Eligibility guidelines.
(a) To be eligible to participate in the buy-in program
beginning the first day of July, two thousand three, an individual
(1) Be a resident of the state of West Virginia;
(2) Have a disability that is defined and determined by the
social security administration or the department;
(3) Be at least sixteen years of age but not more than sixty-
four years of age;
(4) Be engaged in competitive employment, including self-
employment or nontraditional work that results in remuneration at
or above minimum wage in an integrated setting;
(5) Have countable resources that do not exceed the resource
limit for the supplemental security income program;
(6) Have countable income that does not exceed two hundred
fifty percent of the federal poverty level;
(7) Have total countable unearned income, using the social
security income program methodology, that does not exceed the
federal benefit rate plus the general income exclusion; and
(8) Except as provided in section five of this article, not
have countable resources that exceed the resource limits for the
federal supplemental security income program.
(b) The secretary shall establish a method of providing notice
of the availability of participation in the medicaid buy-in
program. The secretary shall develop all forms and notices
necessary to implement the provisions of this article, including
forms for application to the program, determination of eligibility
and continued participation and notices that advise all eligible
buy-in participants of the rights, benefits, obligations and
participation requirements of the program, including, but not
limited to, notice of fees, premiums, premium adjustments, periodic
review, length of time for which benefits may be paid and
§9-4B-5. Exceptions to qualifying factors.
(a) An individual who is enrolled in the buy-in program and
who no longer meets the eligibility requirements of the basic
coverage group due to an improvement in the individual's medical
condition may continue to be eligible for medicaid coverage under
the buy-in program if the individual meets the following
(1) The individual continues to have a severe medically
determinable impairment as determined by the department and as
defined and recognized by federal law;
(2) The individual is employed and earning a monthly wage that
is not less than the federal minimum hourly wage times forty;
(3) The individual does not have income or countable resources
in excess of the limits established for the basic coverage group;
(4) The individual is at least sixteen years of age and less
than sixty-five years of age;
(5) The individual pays any premiums or other cost sharing
required under this chapter; and
(6) The individual meets all other eligibility requirements
under this section.
(b) An individual who is enrolled in the buy-in program and
who is unable to maintain employment for involuntary reasons,
including temporary leave due to a health problem or involuntary
termination, may continue to be eligible for Medicaid coverage
under the buy-in program if the individual meets the following
(1) Within thirty days after the date on which the individual
becomes unemployed, the individual, or an authorized representative
of the individual, submits a written request to the office that the
individual's medicaid coverage be continued;
(2) The individual maintains a connection to the workforce
during the individual's continued eligibility period by
participating in at least one of the following activities:
(A) Enrollment in a state or federal vocational rehabilitation program;
(B) Enrollment or registration with the office of workforce
(C) Participation in a transition from school-to-work program;
(D) Participation with an approved provider of employment
(E) Provision of documentation from the individual's employer
that the individual is on temporary involuntary leave;
(F) The individual does not have income or countable resources
in excess of the limits established under this section;
(G) The individual is at least sixteen years of age and less
than sixty-five years of age;
(H) The individual pays any premiums or other cost sharing
required under this section; and
(I) The individual meets all other eligibility requirements
under this section.
(c) The department shall continue medicaid coverage under the
buy-in program for an individual described in subsection (b) of
this section for up to six months from the date of the individual's
involuntary loss of employment.
(d) If an individual is ineligible for continued coverage
under the buy-in program because he or she fails to meet the
requirements of subsection (b) of this section or has already
fulfilled twelve months of continuing eligibility, the individual shall be required to meet the eligibility requirements of another
available medicaid program in order to continue to be eligible for
§9-4B-6. Fees, premiums and periodic reviews.
(a) The department shall charge a fifty-dollar enrollment fee
to all participants in the medicaid buy-in program. Upon payment
of the enrollment fee, the first month's premium payment is waived.
Medicaid coverage begins on the first day of the month following
payment of the enrollment fee.
(b) The department shall develop a sliding scale of premiums
for individuals participating in the buy-in program. The sliding
(1) Be based on the annual gross income of the individual; and
(2) Provide for a minimum premium of fifteen dollars and a
maximum monthly premium not to exceed three and one-half percent of
the individual's gross monthly income.
(c) Subject to the minimum and maximum amounts described in
this section, the department may annually adjust the scale of
premiums charged for participation in the medicaid buy-in program.
(d) The department shall biannually review the amount of the
premium that an individual is required to pay under this section.
(e) The department may increase the premium required only
after conducting a review.
(f) The department shall decrease the premium that an eligible buy-in participant is required to pay if:
(1) The individual notifies the office of a change in income
or family size; and
(2) The sliding scale adopted by the department applied to the
individual's changed circumstances prescribes a premium for the
individual that is lower than the premium the individual is paying.
(g) The department shall establish administrative procedures
regarding premiums for the buy-in program, including:
(1) The effect of nonpayment of a premium; and
(2) The collection of premiums.
(h) The department shall establish criteria to base the
biannual redetermination of disability required for an individual
participating in the buy-in program on the individual's medical
evidence, including evidence of physical or mental impairment.
(i) In conducting the biannual redetermination described in
this section, the department may not determine that an individual
participating in the buy-in program is no longer disabled solely on
(1) Participation in employment;
(2) Earned income; or
(3) Income from self-employment.
§9-4B-7. Benefits of the medicaid buy-in program
(a) Except as otherwise provided in this article, an eligible
buy-in participant shall receive the same benefits that he or she would otherwise receive as a recipient of medicaid benefits,
including home health care services.
(b) Except as otherwise provided in this article, an eligible
buy-in participant is subject to the same obligations and
requirements, including cost sharing, that he or she would
otherwise be subject to as recipient of medicaid benefits.
§9-4B-8. Analytical criteria and reporting requirements.
(a) The secretary shall establish criteria to determine the
effectiveness of the medicaid buy-in program and continued medicaid
coverage through section 1619 of the federal Social Security Act
(42 U. S. C. §1382h). The criteria shall include an analysis of
(1) The number of individuals with disabilities who are:
(A) Enrolled in the buy-in program; or
(B) Receiving medicaid through Section 1619 of the federal
Social Security Act (42 U. S. C. §1382h);
(2) The amount of state revenues resulting from premiums paid
by participants in the buy-in program; and
(3) The amount of state costs incurred as a result of
implementing the buy-in program, including administrative costs and
costs of providing services.
(b) In addition to the criteria required under subsection (b)
of this section, the secretary may establish criteria to determine
(1) Comparative costs of medicaid funded services for
participants in the buy-in program and work incentives created
through Section 1619 of the federal Social Security Act (42 U. S.
C. §1382h) before and after employment;
(2) The number of supplemental security income and social
security disability insurance recipients in West Virginia who are
no longer dependent on, or who have reduced dependence on, public
assistance or health care entitlement services, other then medicaid
or the children's health insurance program, due to participation in
the buy-in program or work incentives created through Section 1619
of the federal Social Security Act (42 U. S. C. §1382h);
(3) The number of individuals with severe disabilities who are
no longer dependent on, or who have reduced dependence on, public
benefits or services, other than medicaid or the children's health
insurance program, due to income or support services received
through participation in the buy-in program or work incentives
created through Section 1619 of the federal Social Security Act (42
U. S. C. §1382h); and
(4) The change in the number of buy-in program participants or
participants in work incentives created through Section 1619 of the
federal Social Security Act (42 U. S. C. §1382h) who have health
care needs and related services covered through employer based
(c) In evaluating the effectiveness of the state's work incentives initiatives for individuals with disabilities, the
(1) Shall collaborate with other state agencies on data
(2) May consult with an independent contractor to collect data
on the criteria required by this section.
(d) The department secretary shall provide an annual report of
its evaluation of the medicaid buy-in program performed pursuant to
the requirements of this section to the Legislature no later than
the last day of December of each year, beginning in two thousand
§9-4B-9. Advisory council; rules.
(a) The secretary of the department of health and human
resources shall establish a medicaid buy-in program advisory
council, consisting of representatives from the state medicaid
agency, the state rehabilitation agency, the state office of family
support, the West Virginia statewide independent living council,
the West Virginia state rehabilitation council, the West Virginia
developmental disabilities council, the West Virginia mental health
planning council and the center for excellence in disabilities at
West Virginia university.
(b) The secretary shall submit proposed rules for review and
input to the advisory council prior to release for public comment
and shall consider any recommendations of the advisory council before adopting final rules.
The secretary shall propose emergency rules in accordance
with the provisions of section fifteen, article three, chapter
twenty-nine-a of this code to
implement the provisions of this
article. Thereafter, the secretary shall propose additional rules
for legislative approval in accordance with the provisions of said
article three, chapter twenty-nine-a of this code as may be needed
to administer and maintain the medicaid buy-in program.