10.09.24.10-1

.10-1 Treatment of Income and Resources of Certain Institutionalized Spouses.

A. Basis.

(1) Except as this regulation specifically provides, the provisions of this regulation may not affect:

(a) The determination of what constitutes income or resources;

(b) The methodology and standards for determining and evaluating income and resources;

(c) The criteria and standards for determining financial and nonfinancial eligibility for Medical Assistance; or

(d) Any other provision of this chapter.

(2) In determining the eligibility for Medical Assistance of an institutionalized spouse as defined under §B(6) of this regulation, the provisions of this regulation shall supersede any other provisions of this chapter which are inconsistent with them.

(3) Sections D and E of this regulation, which concern the treatment of resources, shall apply to a person who begins a continuous period of institutionalization on or after September 30, 1989. Section C of this regulation, which concerns the treatment of income, shall apply to a person who begins a continuous period of institutionalization before or after September 30, 1989 and who remains institutionalized for a continuous period on or after September 30, 1989. Continuity is broken by absence from an institution for 30 consecutive days.

B. Definitions.

(1) "Community spouse" means a person who lives in the community outside an institution and who is married to an institutionalized spouse.

(2) "Community spouse monthly income allowance" means the amount by which the minimum monthly maintenance needs allowance established under §C(5) of this regulation exceeds the amount of monthly income otherwise available to the community spouse.

(3) "Community spouse resource amount" means the greatest of the amounts under §E(2)(a)—(d) of this regulation.

(4) "Continuous period of institutionalization" means 30 consecutive days of institutional care in a medical institution or nursing home.

(5) "Excess shelter allowance" means the amount by which the sum of the community spouse's expenses for shelter exceeds 30 percent of the amount described under §C(5)(a) of this regulation. Expenses for shelter include rent or mortgage payment, taxes and insurance for the community spouse's principal residence and the standard utility allowance used by the State under §5(e) of the Food Stamp Act of 1977. If the community spouse's principal residence is a condominium or cooperative, the required maintenance charge for the condominium or cooperative shall be included in the sum of the community spouse's expenses for shelter, and the standard utility allowance shall be reduced to the extent the required maintenance charge includes utility expenses.

(6) "Family member" means minor or dependent children, dependent parents, or dependent siblings of the institutionalized or community spouse who are residing with the community spouse.

(7) "Institutionalized spouse" means a person 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 upon a level of care provided in a nursing facility, whose average length of stay exceeds 30 days and who is married to a person who is not in a medical institution or nursing facility.

C. Treatment of Income.

(1) Separate Treatment of Income. During any month in which an institutionalized spouse is in the institution, except as provided under §C(2) of this regulation, income of the community spouse may not be deemed available to the institutionalized spouse.

(2) Attribution of Income. In determining the income of an institutionalized spouse or community spouse, after the institutionalized spouse has been determined to be eligible for Medical Assistance, the following apply:

(a) Non-Trust Property. Except as provided under §C(2)(c) and (d) of this regulation, unless the instrument providing the income otherwise specifically provides, if payment of income is made:

(i) Solely in the name of the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse;

(ii) In the name of the institutionalized spouse and the community spouse, 1/2 of the income shall be considered available to each of them; and

(iii) 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, 1/2 of the joint interest shall be considered available to each spouse.

(b) Trust Property. In the case of a trust, income shall be considered available to each spouse as provided in the trust or, in the absence of a specific provision in the trust, if payment of income is made:

(i) Solely to the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse;

(ii) To both the institutionalized spouse and the community spouse, 1/2 of the income shall be considered available to each of them; and

(iii) 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

(iv) To both spouses and if the interest is not specified, 1/2 of the joint interest shall be considered available to each spouse.

(c) In the case of income not from a trust in which there is an instrument establishing ownership, except as provided under §C(2)(d) of this regulation, 1/2 of the income shall be considered to be available to the institutionalized spouse and 1/2 to the community spouse.

(d) Section C(2)(a) and (c) of this regulation shall be 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 these sections.

(3) Protecting Income for the Community Spouse. After an institutionalized spouse is determined 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 cost 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 of:

(i) $50 a month for dates of service beginning July 1, 2003;

(ii) $60 a month for dates of service beginning July 1, 2004; and

(iii) For dates of service beginning July 1, 2005, an amount adjusted annually by an amount not exceeding 5 percent to reflect the percentage by which social security benefits are increased by the federal government to reflect changes in the cost of living.

(b) A community spouse monthly income allowance as defined under §B(2) of this regulation, 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 defined under §B(5) of this regulation, equal to 1/3 of the amount by which the amount described under §C(5)(a) of this regulation exceeds the amount of the monthly income of that family member; and

(d) Incurred expenses for medical care or remedial service for the institutionalized spouse that are not subject to payment by a third party, including:

(i) Medicare and other health insurance premiums, deductibles or co-insurance charges, and

(ii) Necessary medical care or remedial service recognized under the State law but not covered under the State plan.

(4) Incurred expenses for necessary medical care or remedial service described under §C(3)(d)(ii) of this regulation shall be limited to the fees reimbursed by Medical Assistance which are in effect on the date of service.

(5) Establishment of Minimum Monthly Maintenance Needs Allowance. The minimum monthly maintenance needs allowance for a community spouse is the sum of:

(a) The applicable percent, described under §C(6) of this regulation, of 1/12 of the income official poverty line for a family unit of two members; and

(b) An excess shelter allowance as defined under §B(5) of this regulation.

(6) Applicable Percent. For purposes of §C(5)(a) of this regulation, the applicable percent, effective as of the following dates, is:

(a) September 30, 1989, 122 percent;

(b) July 1, 1991, 133 percent; and

(c) July 1, 1992, 150 percent.

(7) Cap on Minimum Monthly Maintenance Needs Allowance. The minimum monthly maintenance needs allowance established under §C(5) of this regulation may not exceed $1,500, subject to adjustment under §G of this regulation, except as provided under §F(3) of this regulation.

(8) 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 as defined under §B(2) of this regulation shall be not less than the amount of the monthly income ordered.

D. Treatment of Resources.

(1) Computation of Spousal Share at the Time of Institutionalization.

(a) Total Joint Resources. There shall be computed, as of the beginning of the first continuous period of institutionalization 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;

(ii) A spousal share which is equal to 1/2 of the total value.

(b) Assessment. At the request of an institutionalized spouse or community spouse, as of the beginning of the first continuous period of institutionalization of the institutionalized spouse and upon receipt of the relevant documentation of resources, the Department shall:

(i) Promptly assess and document the total value of the resources;

(ii) Provide a copy of the assessment and documentation to each spouse; and

(iii) Retain a copy of the assessment for use under this regulation.

(c) Request for Assessment When Not Part of the Medical Assistance Application. If the request is not part of an application for Medical Assistance, the Department may not include a notice indicating that the spouse has the right to a fair hearing as provided for under §F(1)(c) of this regulation, but shall require payment of a fee not to exceed the reasonable expense of providing and documenting the assessment.

(2) Attribution of Resources at the Time of Initial Eligibility Determination. In determining the resources of an institutionalized spouse at the time of application for benefits under this chapter, regardless of any State laws relating to community property or the division of marital property, all the resources held by either the institutionalized spouse, the community spouse, or both, shall be considered to be available to the institutionalized spouse, but only to the extent that the amount of the resources exceeds the greatest of the amounts computed under §E(2)(a)—(d) of this regulation at the time of application for benefits.

(3) Assignment of Support Rights. The institutionalized spouse may not be ineligible by reason of resources determined under §D(2) of this regulation when:

(a) The resources are unavailable to the institutionalized spouse;

(b) Payments are not being made for the care of the institutionalized spouse;

(c) The institutionalized spouse, or that person's guardian or attorney in fact or representative, agrees to cooperate with the State in bringing a criminal action for nonsupport under Family Law Article, §§10-201 and 10-202, Annotated Code of Maryland; and

(d) The institutionalized spouse, if capable of executing an assignment, has assigned all support rights from the community spouse to the State.

(4) Resources may not be considered to be unavailable to the institutionalized spouse under §D3(a) of this regulation if the institutionalized spouse, or:

(a) That spouse's guardian or attorney in fact has the legal authority to withdraw, liquidate, or otherwise access those resources; or

(b) The institutionalized spouse's guardian or attorney in fact, has assisted in making those resources unavailable unless it can be demonstrated, to the Department's satisfaction, that the:

(i) Action was primarily for a purpose unrelated to Medical Assistance eligibility, and

(ii) Denial of eligibility would work an undue hardship.

(5) Resources shall be considered to be unavailable to the institutionalized spouse under §D(3)(a) of this regulation only if the community spouse has willfully failed to, and refuses to, pay for care of the institutionalized spouse or cannot be located.

(6) Section D(3)(c) or (d) of this regulation may not be considered to be satisfied if the institutionalized spouse, or the institutionalized spouse's guardian or attorney in fact, has taken any action or otherwise assisted in limiting his or her support rights from the community spouse.

(7) The Department shall waive the requirements of §D(3)(c) or (d) of this regulation if the Department determines that denial of eligibility would work an undue hardship.

(8) 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 chapter, resources of the community spouse may not be deemed available to the institutionalized spouse.

E. Permitting Transfer of Resources to the Community Spouse.

(1) In General. An institutionalized spouse may, without regard to Regulation .08K of this chapter, transfer to the community spouse, or to another for the sole benefit of the community spouse, an amount equal to the community spouse resource allowance as defined under §E(2) of this regulation, 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 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 §E(3) of this regulation.

(2) Community Spouse Resource Allowance Defined. The community spouse resource allowance is the amount by which the greatest of the following amounts exceeds the amount of resources otherwise available to the community spouse:

(a) $12,000, subject to adjustment under §G of this regulation;

(b) The lesser of the spousal share computed under §D(1)(ii) of this regulation or $60,000, subject to adjustment under §G of this regulation;

(c) The amount established under §F(4) of this regulation; or

(d) The amount transferred under a court order under §E(3) of this regulation.

(3) Transfers Under Court Orders. If a court has entered an order against an institutionalized spouse for the support of the community spouse, Regulation .08K of this chapter may not apply to amounts of resources transferred under the order for the support of the spouse or a family member as defined under §B(5) of this regulation.

F. Fair Hearing.

(1) The spouse is entitled to a fair hearing as provided for under Regulation .14 of this chapter if either the institutionalized spouse or the community spouse is dissatisfied with the determination of any of the following:

(a) Minimum monthly maintenance needs allowance as established under §C(5) of this regulation;

(b) Determination of the amount of monthly income otherwise available to the community spouse;

(c) Computation of the spousal share of resources under §D(1) of this regulation;

(d) Attribution of resources under §D(2) of this regulation; or

(e) Determination of the community spouse resource allowance as defined under §E(2) of this regulation.

(2) Any 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 if an application for benefits under this chapter has been made on behalf of the institutionalized spouse.

(3) Revision of Minimum Monthly Maintenance Needs Allowance. If either the institutionalized spouse or the community spouse establishes that the community spouse needs income above the level provided by the minimum monthly maintenance needs allowance due to exceptional circumstances resulting in significant financial duress, the Department shall substitute, for the minimum monthly maintenance needs allowance established under §C(5) of this regulation, an amount adequate to provide the additional income as is necessary.

(4) Revision of Community Spouse Resource Amount. If either the institutionalized spouse or the community spouse establishes that the community spouse resource amount, in relation to the amount of income generated by that amount, is inadequate to raise the community spouse's income, which shall include the amount of the community spouse monthly income allowance, to the minimum monthly maintenance needs allowance, the Department shall substitute, for the community spouse resource amount, an amount adequate to provide a minimum monthly maintenance needs allowance.

G. For services furnished during a calendar year after 1989, the dollar amounts specified under §§C(7) and E(2)(a) and (b) of this regulation shall be increased by the same percentage as the percentage increase in the consumer price index for all urban consumers between September, 1988 and the September preceding the calendar year involved.