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U.S. Code as of:
01/19/04
Section 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.
(2) No comparable treatment required
Any different treatment provided under this section for
institutionalized spouses shall not, by reason of paragraph (10)
or (17) of section 1396a(a) of this title, require such treatment
for other individuals.
(3) Does not affect certain determinations
Except as this section specifically provides, this section does
not apply to -
(A) the determination of what constitutes income or
resources, or
(B) the methodology and standards for determining and
evaluating income and resources.
(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) No application in commonwealths and territories
This section shall only apply to a State that is one of the
50 States or the District of Columbia.
(5) Application to individuals receiving services under PACE
programs
This section applies to individuals receiving institutional or
noninstitutional services under a PACE demonstration waiver
program (as defined in section 1396u-4(a)(7) of this title) or
under a PACE program under section 1396u-4 or 1395eee of this
title.
(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) Property with no instrument
In the case of income not from a trust in which there is no
instrument establishing ownership, subject to subparagraph (D),
one-half of the income shall be considered to be available to
the institutionalized spouse and one-half to the community
spouse.
(D) Rebutting ownership
The rules of subparagraphs (A) and (C) are superseded to the
extent that an institutionalized spouse can establish, by a
preponderance of the evidence, that the ownership interests in
income are other than as provided under such subparagraphs.
(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) -
(i) the total value of the resources to the extent either
the institutionalized spouse or the community spouse has an
ownership interest, and
(ii) a spousal share which is equal to 1/2 of such total
value.
(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 -
(A) except as provided in subparagraph (B), all the resources
held by either the institutionalized spouse, community spouse,
or both, shall be considered to be available to the
institutionalized spouse, and
(B) resources shall be considered to be available to an
institutionalized spouse, but only to the extent that the
amount of such resources exceeds the amount computed under
subsection (f)(2)(A) of this section (as of the time of
application for benefits).
(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;
(B) the institutionalized spouse lacks the ability to execute
an assignment due to physical or mental impairment but the
State has the right to bring a support proceeding against a
community spouse without such assignment; or
(C) the State determines that denial of eligibility would
work an undue hardship.
(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.
(5) Resources defined
In this section, the term "resources" does not include -
(A) resources excluded under subsection (a) or (d) of section
1382b of this title, and
(B) resources that would be excluded under section
1382b(a)(2)(A) of this title but for the limitation on total
value described in such section.
(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 -
(A) except as provided in subsection (e) of this section, the
minimum monthly maintenance needs allowance (established under
and in accordance with paragraph (3)) for the spouse, exceeds
(B) the amount of monthly income otherwise available to the
community spouse (determined without regard to such an
allowance).
(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
(ii) an excess shelter allowance (as defined in paragraph
(4)).
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.
(B) Applicable percent
For purposes of subparagraph (A)(i), the "applicable percent"
described in this paragraph, effective as of -
(i) September 30, 1989, is 122 percent,
(ii) July 1, 1991, is 133 percent, and
(iii) July 1, 1992, is 150 percent.
(C) Cap on minimum monthly maintenance needs allowance
The minimum monthly maintenance needs allowance established
under subparagraph (A) may not exceed $1,500 (subject to
adjustment under subsections (e) and (g) of this section).
(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.
(e) Notice and fair hearing
(1) Notice
Upon -
(A) a determination of eligibility for medical assistance of
an institutionalized spouse, or
(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 -
(i) the community spouse monthly income allowance;
(ii) the amount of monthly income otherwise available to
the community spouse (as applied under subsection (d)(2)(B)
of this section);
(iii) the computation of the spousal share of resources
under subsection (c)(1) of this section;
(iv) the attribution of resources under subsection (c)(2)
of this section; or
(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 -
(A) the greatest of -
(i) $12,000 (subject to adjustment under subsection (g) of
this section), or, if greater (but not to exceed the amount
specified in clause (ii)(II)) an amount specified under the
State plan,
(ii) the lesser of (I) the spousal share computed under
subsection (c)(1) of this section, or (II) $60,000 (subject
to adjustment under subsection (g) of this section),
(iii) the amount established under subsection (e)(2) of
this section; or
(iv) the amount transferred under a court order under
paragraph (3);
exceeds
(B) the amount of the resources otherwise available to the
community spouse (determined without regard to such an
allowance).
(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
(B) is married to a spouse who is not in a medical
institution or nursing facility;
but does not include any such individual who is not likely to
meet the requirements of subparagraph (A) for at least 30
consecutive days.
(2) The term "community spouse" means the spouse of an
institutionalized spouse.
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