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Changing the Default Rules for a Community Spouse

As with the income rules, the resource defaults may be changed. First, if all of the Applicant’s income has been diverted to the Community Spouse and the monthly income available to the Community Spouse still does not reach the minimum monthly maintenance needs allowance, then 42 U.S. Code § 1396r–5(e)(2)(C) provides an administrative remedy for increasing the resource allowance to generate income: “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), an amount adequate to provide such a minimum monthly maintenance needs allowance.”

Second, if an order for support was entered against the applicant, then 42 U.S. Code § 1396r–5(f)(3) provides: “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)).” This strategy was used in Blumberg v. Tennessee Department of Human Services. The Tennessee legislature attempted to close down Blumberg-type actions with the revision of T.C.A.§ 71-5-121.

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