§ 1396r-5. Treatment of income and resources for certain institutionalized spouses
(a)
Special treatment for institutionalized spouses
(1)
Supersedes other provisions
In determining the eligibility for medical assistance of an institutionalized spouse (as defined in subsection (h)(1) of this section), the provisions of this section supersede any other provision of this subchapter (including sections
1396a
(a)(17) and
1396a
(f) of this title) which is inconsistent with them.
(3)
Does not affect certain determinations
Except as this section specifically provides, this section does not apply to—
(4)
Application in certain States and territories
(A)
Application in States operating under demonstration projects
In the case of any State which is providing medical assistance to its residents under a waiver granted under section
1315 of this title, the Secretary shall require the State to meet the requirements of this section in the same manner as the State would be required to meet such requirement if the State had in effect a plan approved under this subchapter.
(b)
Rules for treatment of income
(1)
Separate treatment of income
During any month in which an institutionalized spouse is in the institution, except as provided in paragraph (2), no income of the community spouse shall be deemed available to the institutionalized spouse.
(2)
Attribution of income
In determining the income of an institutionalized spouse or community spouse for purposes of the post-eligibility income determination described in subsection (d) of this section, except as otherwise provided in this section and regardless of any State laws relating to community property or the division of marital property, the following rules apply:
(A)
Non-trust property
Subject to subparagraphs (C) and (D), in the case of income not from a trust, unless the instrument providing the income otherwise specifically provides—
(i)
if payment of income is made solely in the name of the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse;
(ii)
if payment of income is made in the names of the institutionalized spouse and the community spouse, one-half of the income shall be considered available to each of them; and
(iii)
if payment of income is made in the names of the institutionalized spouse or the community spouse, or both, and to another person or persons, the income shall be considered available to each spouse in proportion to the spouse’s interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse).
(B)
Trust property
In the case of a trust—
(i)
except as provided in clause (ii), income shall be attributed in accordance with the provisions of this subchapter (including sections
1396a
(a)(17) and
1396p
(d) of this title), and
(ii)
income shall be considered available to each spouse as provided in the trust, or, in the absence of a specific provision in the trust—
(I)
if payment of income is made solely to the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse;
(II)
if payment of income is made to both the institutionalized spouse and the community spouse, one-half of the income shall be considered available to each of them; and
(III)
if payment of income is made to the institutionalized spouse or the community spouse, or both, and to another person or persons, the income shall be considered available to each spouse in proportion to the spouse’s interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse).
(c)
Rules for treatment of resources
(1)
Computation of spousal share at time of institutionalization
(A)
Total joint resources
There shall be computed (as of the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse)—
(B)
Assessment
At the request of an institutionalized spouse or community spouse, at the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse and upon the receipt of relevant documentation of resources, the State shall promptly assess and document the total value described in subparagraph (A)(i) and shall provide a copy of such assessment and documentation to each spouse and shall retain a copy of the assessment for use under this section. If the request is not part of an application for medical assistance under this subchapter, the State may, at its option as a condition of providing the assessment, require payment of a fee not exceeding the reasonable expenses of providing and documenting the assessment. At the time of providing the copy of the assessment, the State shall include a notice indicating that the spouse will have a right to a fair hearing under subsection (e)(2) of this section.
(2)
Attribution of resources at time of initial eligibility determination
In determining the resources of an institutionalized spouse at the time of application for benefits under this subchapter, regardless of any State laws relating to community property or the division of marital property—
(3)
Assignment of support rights
The institutionalized spouse shall not be ineligible by reason of resources determined under paragraph (2) to be available for the cost of care where—
(A)
the institutionalized spouse has assigned to the State any rights to support from the community spouse;
(4)
Separate treatment of resources after eligibility for benefits established
During the continuous period in which an institutionalized spouse is in an institution and after the month in which an institutionalized spouse is determined to be eligible for benefits under this subchapter, no resources of the community spouse shall be deemed available to the institutionalized spouse.
(d)
Protecting income for community spouse
(1)
Allowances to be offset from income of institutionalized spouse
After an institutionalized spouse is determined or redetermined to be eligible for medical assistance, in determining the amount of the spouse’s income that is to be applied monthly to payment for the costs of care in the institution, there shall be deducted from the spouse’s monthly income the following amounts in the following order:
(A)
A personal needs allowance (described in section
1396a
(q)(1) of this title), in an amount not less than the amount specified in section
1396a
(q)(2) of this title.
(B)
A community spouse monthly income allowance (as defined in paragraph (2)), but only to the extent income of the institutionalized spouse is made available to (or for the benefit of) the community spouse.
(C)
A family allowance, for each family member, equal to at least 1/3 of the amount by which the amount described in paragraph (3)(A)(i) exceeds the amount of the monthly income of that family member.
(D)
Amounts for incurred expenses for medical or remedial care for the institutionalized spouse (as provided under section
1396a
(r) of this title).
In subparagraph (C), the term “family member” only includes minor or dependent children, dependent parents, or dependent siblings of the institutionalized or community spouse who are residing with the community spouse.
(2)
Community spouse monthly income allowance defined
In this section (except as provided in paragraph (5)), the “community spouse monthly income allowance” for a community spouse is an amount by which—
(3)
Establishment of minimum monthly maintenance needs allowance
(A)
In general
Each State shall establish a minimum monthly maintenance needs allowance for each community spouse which, subject to subparagraph (C), is equal to or exceeds—
(i)
the applicable percent (described in subparagraph (B)) of 1/12 of the income official poverty line (defined by the Office of Management and Budget and revised annually in accordance with section
9902
(2) of this title) for a family unit of 2 members; plus
A revision of the official poverty line referred to in clause (i) shall apply to medical assistance furnished during and after the second calendar quarter that begins after the date of publication of the revision.
(4)
Excess shelter allowance defined
In paragraph (3)(A)(ii), the term “excess shelter allowance” means, for a community spouse, the amount by which the sum of—
(A)
the spouse’s expenses for rent or mortgage payment (including principal and interest), taxes and insurance and, in the case of a condominium or cooperative, required maintenance charge, for the community spouse’s principal residence, and
(B)
the standard utility allowance (used by the State under section
2014
(e) of title
7) or, if the State does not use such an allowance, the spouse’s actual utility expenses,
exceeds 30 percent of the amount described in paragraph (3)(A)(i), except that, in the case of a condominium or cooperative, for which a maintenance charge is included under subparagraph (A), any allowance under subparagraph (B) shall be reduced to the extent the maintenance charge includes utility expenses.
(5)
Court ordered support
If a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall be not less than the amount of the monthly income so ordered.
(6)
Application of “income first” rule to revision of community spouse resource allowance
For purposes of this subsection and subsections (c) and (e), a State must consider that all income of the institutionalized spouse that could be made available to a community spouse, in accordance with the calculation of the community spouse monthly income allowance under this subsection, has been made available before the State allocates to the community spouse an amount of resources adequate to provide the difference between the minimum monthly maintenance needs allowance and all income available to the community spouse.
(e)
Notice and fair hearing
(1)
Notice
Upon—
(B)
a request by either the institutionalized spouse, or the community spouse, or a representative acting on behalf of either spouse,
each State shall notify both spouses (in the case described in subparagraph (A)) or the spouse making the request (in the case described in subparagraph (B)) of the amount of the community spouse monthly income allowance (described in subsection (d)(1)(B) of this section), of the amount of any family allowances (described in subsection (d)(1)(C) of this section), of the method for computing the amount of the community spouse resources allowance permitted under subsection (f) of this section, and of the spouse’s right to a fair hearing under this subsection respecting ownership or availability of income or resources, and the determination of the community spouse monthly income or resource allowance.
(2)
Fair hearing
(A)
In general
If either the institutionalized spouse or the community spouse is dissatisfied with a determination of—
(ii)
the amount of monthly income otherwise available to the community spouse (as applied under subsection (d)(2)(B) of this section);
(v)
the determination of the community spouse resource allowance (as defined in subsection (f)(2) of this section);
such spouse is entitled to a fair hearing described in section
1396a
(a)(3) of this title with respect to such determination if an application for benefits under this subchapter has been made on behalf of the institutionalized spouse. Any such hearing respecting the determination of the community spouse resource allowance shall be held within 30 days of the date of the request for the hearing.
(B)
Revision of minimum monthly maintenance needs allowance
If either such spouse establishes that the community spouse needs income, above the level otherwise provided by the minimum monthly maintenance needs allowance, due to exceptional circumstances resulting in significant financial duress, there shall be substituted, for the minimum monthly maintenance needs allowance in subsection (d)(2)(A) of this section, an amount adequate to provide such additional income as is necessary.
(C)
Revision of community spouse resource allowance
If either such spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance under subsection (f)(2) of this section, an amount adequate to provide such a minimum monthly maintenance needs allowance.
(f)
Permitting transfer of resources to community spouse
(1)
In general
An institutionalized spouse may, without regard to section
1396p
(c)(1) of this title, transfer an amount equal to the community spouse resource allowance (as defined in paragraph (2)), but only to the extent the resources of the institutionalized spouse are transferred to (or for the sole benefit of) the community spouse. The transfer under the preceding sentence shall be made as soon as practicable after the date of the initial determination of eligibility, taking into account such time as may be necessary to obtain a court order under paragraph (3).
(2)
Community spouse resource allowance defined
In paragraph (1), the “community spouse resource allowance” for a community spouse is an amount (if any) by which—
(3)
Transfers under court orders
If a court has entered an order against an institutionalized spouse for the support of the community spouse, section
1396p of this title shall not apply to amounts of resources transferred pursuant to such order for the support of the spouse or a family member (as defined in subsection (d)(1) of this section).
(g)
Indexing dollar amounts
For services furnished during a calendar year after 1989, the dollar amounts specified in subsections (d)(3)(C), (f)(2)(A)(i), and (f)(2)(A)(ii)(II) of this section shall be increased by the same percentage as the percentage increase in the consumer price index for all urban consumers (all items; U.S. city average) between September 1988 and the September before the calendar year involved.
(h)
Definitions
In this section:
(1)
The term “institutionalized spouse” means an individual who—
(A)
is in a medical institution or nursing facility or who (at the option of the State) is described in section
1396a
(a)(10)(A)(ii)(VI) of this title, and
but does not include any such individual who is not likely to meet the requirements of subparagraph (A) for at least 30 consecutive days.