Deeming Terminates After Eligibility Is Established. Four years later, the Duprees were back in Court. At the annual review on February 29, 2012, DFCS denied eligibility due to a failure to submit documentation. The documents were then submitted and eligibility was denied with DFCS alleging petitioner was over resourced. Petitioner had not acquired any new resources. The resources in question belonged to the Community Spouse. The ALJ stated that “this case turns on a single question of law. “Does deeming continue after Medicaid eligibility is established?” The ALJ cited 42 U.S.C. § 1396r-5(c)(4) which states: “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 .” Further, citing Wisconsin v. Blumer, 534 U.S. 473, 483 n.4 (2002), “Once the institutionalized spouse is determined to be eligible, no resources gained by the community spouse shall be deemed available to the institutionalized spouse.” See also Hughes v. McCarthy, 734 F.3d 473 (6th Cir. 2013); Morenz v. Wilson-Coker, 415 F.3d 230 at note 1 (2nd Cir. 2005); Geston v. Olson, 857 F. Supp. 2d 863, 875 (N.D. 2012). Morris v. Oklahoma Dep’t of Human Services, 685 F.3d 925 (10th Cir. 2012) made it clear that 42 U.S.C. § 1396r-5(c)(4) related to the initial determination of eligibility. There the Court said “once an agency affirmatively determines that an institutionalized spouse is eligible for benefits, as which point separate treatment of resources begins.” Citing Houghton v. Reinertson, 382 F.3d 1162 (6th Cir. 2004), which in turn cited Barnhart, 534 U.S. at 450, “after the initial one-month eligibility period, no resources of the community spouse shall be deemed available to the institutionalized spouse.” The ALJ also referenced MCCA’s legislative history and cited the Preston Letter which states that after the month in which the institutionalized spouse is determined to be eligible, the community spouse can do whatever he or she want to with resources belonging to the Community Spouse. The ALJ then turned to Georgia’s ABD Manual on the marital relationship. A marital relationship ends the month after a spouse enters a LTC facility and deeming ends the following month. See ABD Manual Sections 2501 and 2502. See also 42 C.F.R. 416.1163(f)(5) and POMS SI 01320.450. The Court concluded that deeming terminated as of November 2010 and none of the Community Spouse’s resources could be used in determining eligibility.
Links to MCCAs legislative history are here.
Dupree v. Department, Part 2 (May 10, 2014).
