Georgia Medicaid Book, Chapter 4 – Issues When There is a Community Spouse

(Updated January 13, 2022)

While nursing home bills accrue, the healthy or well spouse, known as the “Community Spouse,” [Note 1] struggles to identify and keep income and resources that are necessary to support herself. [Note 2]. To remedy this situation, Congress enacted spousal impoverishment provisions as part of the Medicare Catastrophic Coverage Act of 1988 (“MCCA”). [Note 3].

Note 1: 42 U.S.C. § 1396r-5(h)(2); State Medicaid Manual, CMS Publication 45, § 3260.1.
Note 2: Throughout this Chapter, we assume the husband is the Institutionalized Spouse and the wife is the Community Spouse. The analysis, however, would be identical if the situation were reversed.
Note 3: 100 P.L. 360; 102 Stat. 683; 1988 Enacted H.R. 2470; 100 Enacted H.R. 2470 (enacted July 1, 1988). “Prior to 1988, a married individual who was institutionalized was required to “spend down” all of the couple’s jointly held assets in order to become eligible for Medicaid benefits. H.R.Rep. No. 100-105(II), 100th Cong., 2nd Sess., at 65-67 (1988), reprinted in 1988 U.S.C.C.A.N. 857, 888-90. That policy had the effect of forcing the community spouse to “spend down” virtually all of the marital assets before the institutionalized spouse could be eligible for Medicaid and resulted in “community spouses” having to sue their institutionalized spouses for support or become prematurely institutionalized themselves. See 1988 U.S.C.C.A.N. at 892.” Johnson v. Guhl, 166 F.Supp.2d 42, 46 (D. N.J. 2001); See also Dullard v. Minnesota Department of Human Services, 529 N.W.2d 438, 443 (Minn. App. 1995).

The spousal impoverishment provisions were designed to end the pauperization of Community Spouses by allowing them to protect a sufficient, but not excessive, spousal share of the marital resources and income to meet their own needs. Meanwhile, the Institutionalized Spouse is in a nursing home at Medicaid’s expense. The spousal impoverishment provisions are codified at 42 U.S.C. § 1396r-5.

MCCA’s legislative history:

The leading cause of financial catastrophe among the elderly is the need for long-term care, especially the need for nursing home placement. The expense of nursing home care–which can range from $2,000 to $3,000 per month or more–has the potential for rapidly depleting the lifetime savings of all but the wealthiest. Even under the Committee’s bill, Medicare’s expanded skilled nursing facility benefits will not protect the elderly against the costs of long-term institutionalization. Private insurance coverage for nursing home costs is not widely available. For most of the elderly, the Medicaid program is the only third party source of payment for nursing home care. Medicaid, a means-tested entitlement program, requires that the elderly or disabled nursing home resident be poor in order to qualify for coverage. It also limits the income that an institutionalized spouse may make available for the spouse remaining in the community. If the institutionalized spouse receives the pension and other income in his name, this limit may have the effect of impoverishing the spouse in the community. The purpose of the Committee bill is to end this pauperization by assuring that the community spouse has a sufficient–but not excessive–amount of income and resources available to her while her spouse is in a nursing home at Medicaid expense. This will be of particular benefit to older women, who, in the current generation at risk of nursing home care, have often worked at home all their lives raising families and have limited income other than their husbands’ pension checks.

Current law.–To determine how much is available for the community spouse to live on when her elderly spouse in the nursing home applies for Medicaid, it is necessary first to determine whether the institutionalized spouse is eligible for Medicaid based on income and resources. If eligibility is established, it is then necessary to determine how much of the institutionalized spouse’s monthly income is to be applied to the cost of nursing home care, and how much is to be available to the community spouse. Eligibility standards.–In general, in order to qualify for Medicaid, an individual must be categorically related–that is, be aged, blind, disabled, or a member of a family with dependent children–and must meet certain income and resources standards. In most States, elderly or disabled people receiving cash assistance under the Supplemental Security Income (SSI) program are automatically eligible for Medicaid. Aged or disabled individuals may receive SSI benefits if their countable income and countable resources do not exceed specified standards. The basic SSI income standard for an individual in 1987 is $340 per month, but many States have elected to supplement this benefit with their own funds. The basic SSI resource standard for an individual in 1987 is $1,800. In determining countable resources, a number of items are excluded, including the individual’s home (of any value), household goods and personal effects worth less than $2,000, an automobile **889 *66 with a market value of $4,500 or less, and up to $1,500 in life insurance or burial funds. Not all States automatically extend Medicaid coverage to SSI beneficiaries. In about 14 States, known as “209(b)” States, eligibility standards, particularly resource rules, more restrictive than those under SSI are applied to the elderly or disabled. In about 35 States, elderly individuals who are not poor enough to qualify for SSI, but who have large, recurring medical expenses, such as nursing home bills, qualify for Medicaid as medically needy.” Finally, about 30 States offer coverage, on an “optional categorically needy” basis, to nursing home residents whose incomes fall below a State-established special income level no higher than 300 percent of the basic SSI benefit level ($1,020 per month in 1987). There are roughly 1.5 million Medicaid beneficiaries in nursing homes, whether skilled nursing facilities (SNFs) or intermediate care facilities (ICFs). Less than one-fourth of those are poor enough to qualify for SSI cash assistance. The remaining three-fourths are eligible either as “medically needy” or “optional categorically needy.” Individuals who qualify for Medicaid in nursing homes on either of these bases must apply a certain portion of their income toward the cost of their nursing home care. It is these post- eligibility rules, in combination with the rules for attributing income and resources, that give rise to the problem of “spousal impoverishment.” [Note 4]

The Committee bill would end spousal impoverishment. [Note 5]

Note 4: H.R. Rep. No. 105(II), 100TH Cong., 1ST Sess. 1987, at 65-66; 1988 U.S.C.C.A.N. 857, 888-889; 1987 WL 61566. Of note, nursing home monthly rates today significantly exceed those recited in the legislative history. Also of note, today, individuals or couples with foresight can purchase long-term care insurance.
Note 5: Id., at 1988 U.S.C.C.A.N at 892.

The purpose of this Chapter is to summarize the MCCA spousal impoverishment provisions and how they work. [Note 6]. Where the Community Spouse might otherwise be impoverished by the cost of nursing home care, certain resources, known as a Community Spouse Resource Allowance (CSRA) are allocated for his or her protection. See 42 U.S.C. § 1396r-5(c). An income allowance is also available for low-income Community Spouses.

Note 6: Any study of Medicaid is an on-going process at best and persons using this Book should review current developments before taking action. “There can be no doubt that the statutes and provisions in question, involving the financing of … Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase.” Johnson v. Guhl, 91 F.Supp.2d 754, 758 (D. N.J. 2000).

Definitions

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. 42 U.S.C. § 1396r-5(h)(1)

The term ”community spouse” means the spouse of an institutionalized spouse. 42 U.S.C. § 1396r-5(h)(2)

Protecting Resources for the Community Spouse

MCCA shelters from diminution a standard amount of assets (called the “community spouse resource allowance,” “CSRA,” or “resource allowance”). Wis. Dep’t of Health and Family Servs. v. Blumer, 534 U.S. 473 (2002).  Section 1396r-5(c) provides as follows:

(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.

Subsection 1396r-5(f)(2) further provides:

(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)), 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), or (II) $60,000 (subject to adjustment under subsection (g)),
(iii) the amount established under subsection (e)(2); 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).

The subsection (f)(2) formula is the greatest of:

  • The spousal resource amount,
  • The State spousal resource standard, which is the amount that the State has determined will be protected for the community spouse,
  • An amount transferred to the community spouse for her support as directed by a court order, or
  • An amount designated by a State hearing officer to raise the community spouse’s protected resources up to the minimum monthly maintenance needs allowance.

When  calculating the CSRA, the first step is to value of all resources owned by either spouse, jointly or individually. This calculation, necessary due to the deeming provisions in subsection (c)(2), is sometimes called a “snapshot.” The snapshot date is the first date of continuous institutionalization. 42 USC § 1396r-5(c)(4)(1). [Note 7]. Initially, the spousal share is one-half the total of all marital resources. 42 USC § 1396r-5(c)(4)(1)(A)(ii). However, the spousal share is subject to minimum and maximum limits which are indexed for inflation. Either spouse may ask the State to calculate the spousal share prior to seeking eligibility. 1396r-5(c)(1)(B).

Note 7: A continuous period of institutionalization is 30 consecutive days in medical institutions and/or nursing facilities. State Medicaid Manual, CMS Publication 45, § 3260.1.

The CSRA minimums and maximums are calculated in 1988 dollars, which are adjusted each year. In 2022 the minimum CSRA is $27,480 and the maximum is $137,400. Some States, such as Georgia, allow the Community Spouse to retain the maximum CSRA ($137,400 in 2022). Others, such as Tennessee, apply a formula as permitted in Subsection (f)(2).

In applying the first two prongs of subsection (f)(2), States must allow the Community Spouse to keep the minimum CSRA ($27,480 in FY2022) and, if the marital resources exceed twice the minimum CSRA (meaning, in FY2021, if the marital estate exceeds $54,960), then States must adjust the CSRA so that the Community Spouse keeps one-half of marital resources up to the maximum CSRA.

Note: In some cases, if good care is available, moving across a State line can result in savings. For example, Georgia allows the Community Spouse to keep the maximum resource and income allowance while Tennessee does not.

Example 1: Kevin and Sally own a home valued at $250,000. They have a van valued at $20,000. Kevin has $20,000 in a checking account and has a CD in the amount of $30,000. Sally has CDs in her name totalling $50,000. They have a joint mutual fund account in the amount of $100,000. Kevin is admitted to a nursing home on October 1st. Sally requests a determination of the spousal share. The “snap-shot” is as follows:

Excluded Resources:

    • Home – $250,000
    • Vehicle – $20,000

Total: $270,000

Countable Resources:

    • Checking Account $20,000
    • CDs $80,000
    • Mutual Fund $100,000

Total: $200,000

Under this example, in a maximum-maximum State like Georgia, Sally will keep the exempt resources, plus $138,380 from the countable resources. Something must be done with the excess $69,620 before Kevin is eligible for Medicaid. In a State like Tennessee, where the Community Spouse keeps one-half of the marital resources between the minimum and maximum CSRA, the excess resource amount is $100,000, meaning something must be done with the excess $100,000 before Kevin will be eligible for Medicaid. Determining what that “something” looks like is where Medicaid planning becomes relevant.

Example 2: John and Mary own a house with no mortgage valued at $75,000. John has a certificate of deposit in his name in the amount of $35,000. Mary owns stock worth $60,000. Together they own a mutual fund worth $25,000, and an automobile. Mary also has an irrevocable burial trust valued at $5,000. John is admitted to a nursing home for long-term custodial care on May 1. The State Medicaid agency takes a “snapshot” of the couple’s countable assets as of May 1st, the first date of continuous institutionalization. The “snapshot is as follows:

Excluded Resources:

    • Home – $75,000
    • Vehicle
    • Irrevocable burial trust – $5,000

Total: $75,000

Countable Resources:

    • CDs $35,000
    • Stock $60,000
    • Mutual Fund $25,000

Total: $120,000

In Georgia, Mary would keep the non-countable resources and all of the countable resources as her CSRA. In Tennessee, where the subsection (f)(2) formula is applied, Mary would keep $60,000 as her CSRA, John would keep $2,000 as his resource limit, and the remaining $58,000 is at-risk to pay nursing home bills. A recent (10/28/2021) article, Legal Ease: What is the Medicaid Asset Split?, by Rebecca Hobbs, CELA, discusses the process used in States like Tennessee and includes advice regarding the timing of any spend-down.

In summary, all countable marital resources, other than the CSRA, are deemed available to the Institutionalized Spouse until eligibility is established. 42 U.S.C. § 1396r-5(c)(2). Stated in the inverse, the CSRA is not deemed available to pay for the institutionalized spouse’s care and need not be spent down for the applicant to become Medicaid eligible.

When calculating the CSRA and the at-risk amount, neither the duration of the marriage nor the manner in which the resources are titled is relevant (unless titled in a manner that prevents the couple from liquidating the resource). All marital resources are pooled, regardless of the length of marriage (whether fifty years or five months). Prenuptial agreements are not relevant except to the extent they are used to secure additional court ordered support under subsection (f)(2).

The couple is not required to spend-down paying nursing home bills. They may spend-down resources on anything benefiting them (other than gifting). Although excess resources are initially “at-risk,” timely planning may protect the at-risk portion of the marital estate.

Example 3: Assume Kevin and Sally have the same resources described in Example 1, but they owe $90,000 on their home. After the resource assessment, Sally uses the “at-risk” resources to pay off the mortgage (converting countable resources into exempt resources). She purchases prepaid cremation contracts (non-countable resources) in the amount of $3,500 each for herself and Kevin. She spends the remaining $3,000 on a trip to visit her son in California. The “at-risk” resources have been spent and Kevin is now eligible for Medicaid benefits.

Excluded Resources:

    • Home – $250,000 ($90,000 mortgage)
    • Vehicle – $20,000

Total: $270,000

Countable Resources:

    • Checking Account $20,000
    • CDs $80,000
    • Mutual Fund $100,000

Total: $200,000 (At-risk amount in Georgia $69,620 in 2021; at risk amount in Tennessee is $100,000)

Spend-Down

    • $90,000 paying off mortgage
    • $7,000 for 2 cremation contracts
    • $3,000 trip to visit son

Maximum-Maximum State result: Paying off mortgage (or partially paying at least $69,620) results in immediate eligibility

Minimum-Maximum State result: Paying off mortgage, plus other spending results in eligibility

The CSRA and resources gained by the Community Spouse after eligibility is established are not available to pay the health care expenses of the Institutionalized Spouse, see 42 U.S.C. § 1396r-5(c)(4). However, several courts have crafted an exception to this rule where an application for benefits is delayed.

In A.K. v. Division of Medical Assistance and Health Services, 794 A.2d 835 (N.J. 2002), the Institutionalized Spouse was admitted to a nursing home in September, 1995. On October 1, 1995, New Jersey calculated the couple’s total countable resources, but no application for benefits was filed. Resources were calculated as $219,725.40 and, at that time, the CSRA was $80,760. New Jersey informed the Community Spouse that his wife would not be eligible for Medicaid benefits until he spent down the balance over the CSRA, less his wife’s $2,000 personal needs allowance. During the subsequent three years, the Community Spouse spent $136,965.40 on his wife’s care and, thereafter, applied for Medicaid benefits. However, during that time, his Mobile stock appreciated in value. New Jersey took the position that, while the CSRA is fixed as of the “snapshot” date, the application of the CSRA to the marital estate (or determination of how much must be spent down to reach the CSRA) occurs, not at the time of institutionalization, but at the time of application. On appeal, the New Jersey Supreme Court affirmed the department’s ruling. Stating, “[t]he present debate is fueled by the absence of a clear statement in the law specifying the purpose and consequences of the “snapshot” resource evaluation that occurs, or may occur, at the start of a spouse’s continuous institutionalization,” the Court found “that absent an accompanying Medicaid application, this process is informational only.” It then held that “the community spouse’s share of the resources is subtracted from the couple’s total combined resources as of the first moment of the first day of the month of application for Medicaid.” Id., at 839. The Court went on to find that, absent an application for benefits, a valuation requested pursuant to Subsection (c)(1)(B) is “informational only.” The Court held that “the plain language of the federal and state statutes [is that] the spousal share is to be fixed based on the couple’s assets as of institutionalization, but eligibility is to be determined by reference to the total assets owned by the couple at the time of application for medical benefits.” Id., at 842. See also Estate of Atkinson v. Minnesota Department of Human Services, 564 N.W.2d 209 (Minn. 1997) (reaching the same result).

Transfer Penalties

Some couples might consider reducing the size of the marital estate by giving their resources away. Frequently this is the result when the plan is “home-made.” However, transfers for less than fair market value, including complete and partial gifts) trigger a period of ineligibility. 42 U.S.C. 1396p(c). It does not matter whether the applicant or Community Spouse makes the transfer for less than fair market value. The only issue is whether either spouse made a transfer for less than fair market value within the look-back period. If so, then the State must impose a Medicaid eligibility penalty. 42 U.S.C. § 1396p(c)(1) (emphasis added).

The transfer penalty is calculated by dividing the value of assets given away by the average monthly cost of nursing home care (the “divisor”). The divisor varies from State-to-State. In 2021, the Georgia divisor is $8,821 (beginning 4/1/2021). The Tennessee divisor is $5,472 (since 3/1/2015). Thus, if $100,000 was given away by either spouse , a Georgia applicant would be disqualified for 11.34 months and a Tennessee applicant would be disqualified for 18.27 months. In general, the penalty is (theoretically) for the approximate number of months the applicant could have private paid for nursing home care if the gift had not been made. Transfers to trusts may trigger a penalty. See discussion of Johnson v. Guhl, supra.

The actual cost of nursing home care in 2021 would exceed $100,000 regardless of whether the applicant is penalized 11.34 months or 18.27 months. The lesson here is that gifting requires careful planning. If gifting is not part of a plan, the cost of providing nursing home care during a penalty period may exceed the value of the gift.

Because the focus in this Chapter is on MCCA’s spousal impoverishment provisions, gifting is mentioned primarily to underscore inclusion of the Community Spouse’s gifts as part of the eligibility process. 42 U.S.C. § 1396p(h)(1)(A) makes it clear that action by the applicant or the applicant‘s spouse transferring income and resources of the applicant or spouse, or preventing receipt of income or resources either is entitled to receive, is subject tot he penalty rule.

Transfers to the Community Spouse and disposition of Resources After Eligibility is Determined

Since all marital resources are deemed available, there is no penalty when resources are transferred from one spouse to the other. In most States, including Georgia, the CSRA must be transferred to the Community Spouse before the next annual review because the Institutionalized Spouse must have less than $2,000 in countable resources when the annual review takes place. The transfer of all marital resources (countable and exempt) from the Institutionalized Spouse to the Community Spouse is a common Medicaid Planning technique. There are at least two reasons for these transfers: First, if the Community Spouse predeceases the Institutionalized Spouse, then at her death, the spousal impoverishment provisions no longer apply. Thus, if the Institutionalized Spouse still owns resources, he will be immediately over-resourced and lose eligibility. By transferring resources to the Community Spouse’s name, she can leave them in a testamentary special needs trust for the benefit of the Institutionalized Spouse without over-resourcing him and causing him to lose Medicaid eligibility. Second, resources removed from the Institutionalized Spouse’s estate are not subject to estate recovery (in most states).

Some commentators opine that, after eligibility is established, the Community Spouse may dispose of the CSRA and exempt assets without triggering a Medicaid Penalty. A letter, dated April 5, 2000, from Ronald Preston, Associate Regional Administrator to Brian E. Barreira which reads as follows:

This is in reply to your letter concerning transfer of assets by community spouses. You advised us that it is the position of the Division of Medical Assistance (DMA) that the post-eligibility transfer made by community spouses causes Medicaid disqualification. Thus, you requested that we notify DMA of its need to come into compliance with federal law.

Under the transfer of assets provisions in § 1917(c) of the Social Security Act (the Act), transfers between spouses are exempt from any transfer penalty. Under the spousal impoverishment provisions of § 1924 of the Act, once eligibility is determined, the resources of the community spouse are no longer considered available to the institutionalized spouse. Thus, after the month in which an institutionalized spouse is determined to be eligible for Medicaid, any resources belonging to the community spouse are solely the property of that spouse. That is, the community spouse can do whatever he or she wants with them.

Notwithstanding the Preston letter, at least one court has taken a different view. In Thompson v. State of Connecticut Department of Social Services, 1999 Conn. Super. LEXIS 3174 (CV 980063936 November 23, 1999), a Community Spouse transferred an exempt resource, first from the Institutionalized Spouse to himself, then to his daughter. The second transfer was challenged. In reviewing the transactions, the court found that while the transfer from the Institutionalized Spouse was an appropriate transfer, the second transfer from the Community Spouse to his daughter “was an obvious attempt to place the property beyond the reach of the State Department of Social Services.” Id., at *5. As a result, the spousal exemption was lost thereby losing [the Institutionalized Spouse’s] eligibility for [Medicaid Benefits].” Id., at *6. The Court found that “at the moment the community spouse moved out of the marital residence, the recipient’s eligibility for [Medicaid] would have been lost, since the value of the property would no longer be exempt.” Id., at *7.

Although the Thompson decision appears to be a case of bad facts making bad law, caution should be used when making transfers beyond the marriage. While the language in both 1396r-5 and 1396p support a conclusion more consistent with the Preston letter, some courts have held that it only applies to the CSRA, not exempt resources. Nonetheless, it is clear that Section 1396r-5 terminates deeming at the time of eligibility. 42 U.S.C. § 1396r-5(c)(4). Thereafter, any resources owned by the Community Spouse can be used (or given away) as she chooses, see § 1396r-5(c)(5); the only resources deemed available to the Institutionalized Spouse are those exceeding the CSRA. 1396r-5(c)(2)(B).

Another reason for transferring resources to the Community Spouse is avoidance of estate recovery claims. Section 1396p does not create an estate recovery claim against resources held by the Community Spouse. Instead, it preserves a claim against “the property of an individual on account of medical assistance rendered to him.” See § 1396p(a). Since 1396p(c)(2) authorizes inter-spousal transfers without penalty, good planning usually means the Institutional Spouse will not own assets subject to a lien at death.

See Dupree v. Department of Human Resources, Georgia Office of State Administrative Hearings, Docket No. OSAH-DFCS-ABDA-1430837-146-Langston (May 10, 2014) (deeming terminates when eligibility is established)

In Nevada Department of Human Resources v. Ullmer, 87 P.3d 1045 (Nev. April 1, 2004), the court took a position at odds with the notion that exempt resources may be transferred for less than market value after eligibility is determined. There, Nevada placed a lien on the deceased Institutionalized Spouse’s interest in a homeplace prior to the Community Spouse’s death. The Community Spouse argued that the lien was an impermissible recovery and that it should be dissolved. The court found affirmed the use of pre-death liens as long as the lien is limited to the Medicaid applicant’s interest in the property, that the liens are released if the Community Spouse transfers the property for fair market value and the lien includes notice that surviving spouses are free to use or dispose of property through bona-fide transactions as a method of avoiding impoverishment. “Although the government is prohibited from executing its interest until the surviving spouse’s death, the government’s interest survives and continues with the property. Any individual who takes property upon the death of a Medicaid recipient, through inheritance, assignment, joint tenancy, etc., takes it subject to the government’s interest. … [A]ny person who acquires an interest in the property through gift or fraudulent transfer, takes the property subject to the State’s interest granted by the estate recovery statutes.” Id. The court held that this approach balances two important interests: avoiding spousal impoverishment and estate recovery. The effect, however, is although the Community Spouse may spend the equity in her homeplace, she cannot give it away if the Institutionalized Spouse owned an interest at the time of his death.

Interspousal Transfers that Exceed the CSRA

As a general rule, there is no Medicaid penalty for asset (income or resources) transfers between spouses. 42 U.S.C. § 1396p(c)(2)(B). However, that does not mean States always approve interspousal transfers that exceed the CSRA. In McNamara v. Ohio Department of Human Services, 744 N.E.2d 1216 (Ohio App. 2000), the court negated a transfer of resources beyond the CSRA by looking through a spousal trust to find the corpus available to pay the Institutionalized Spouse’s health care bills. There, Mr. McNamara transferred more than $200,000 into an actuarially sound spousal trust for his benefit. His argument was that Section 1396p(c)(2)(B) permits unlimited transfers to or for the benefit of a spouse. The court rejected Mr. McNamara’s argument finding that permitting unlimited interspousal transfers would render the CSRA limits in Section 1396r-5 meaningless. Specifically, the court held that “the amount of funds that one person may transfer to his or her spouse under Section 1396p(c)(2)(b) is limited to the maximum accounts the community spouse may retain under CSRA provisions in Section 1396r-5(f).” Id., at 1220. The reasoning is similar to a circumstance where an individual attempts to shield assets from his own creditors by making himself the beneficiary of a self-funded spendthrift trust; trusts of that sort are generally pierced for the benefit of creditors. Although the concepts are not identical, the result reached in McNamara is similar.

 

This begs the question: would the result have been different if Mr. McNamara owned the resources in his own name prior to Mrs. McNamara’s institutionalization? The answer, under A.K. v. Division of Medical Assistance and Health Services would be “no.” This is because (1) all resources are counted when the snapshot is taken, regardless of whose name they are titled in, and (2) other than the CSRA, all resources are deemed available to pay for the Institutionalized Spouse’s nursing home care.

Potential Redetermination When Moving to a New State

In Dullard v. Minnesota Department of Human Services, 529 N.W.2d 438, 443 (Minn. App. 1995), Minnesota was allowed to reevaluate eligibility after a couple moved from Illinois to Minnesota. There, Illinois (like Georgia) allowed the Community Spouse to keep the maximum CSRA, while Minnesota (like Tennessee) applied a formula resulting in a lower CSRA. The Minnesota Court concluded “the correct interpretation of the statute is that when an institutionalized spouse moves from another state to Minnesota during a continuous period of institutionalization, Minnesota may conduct its own asset assessment, but that it may only consider the assets of the couple as of the first continuous period of institutionalization in the other state.” The State Medicaid Manual is inconclusive in determining whether this was the correct approach. State Medicaid Manual § 3262.2(A) appears to preclude reevaluation, which State Medicaid Manual § 3262.6 appears to permit it.

Protecting Income for the Community Spouse

Income and resources are treated differently. Unlike resources, income is not pooled in determining eligibility; the Community Spouse’s separate income is never considered available to the Institutionalized Spouse. Thus, the standard income eligibility process for one person applies.

First, all income earned by the Community Spouse is always unavailable to pay nursing home bills, regardless of the amount. See § 1396r-5(b)(1). This applies whether the income is pension income, annuity income or otherwise. If income could be paid to either spouse, the name on the check determines which spouse is deemed to be the recipient of the income. See § 1396r-5(b)(2)(A)(i). Regarding how income is treated, 42 U.S.C. § 1396r-5(b) provides:

(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), 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.

Post-Eligibility Treatment of the Institutional Spouse’s Income

As eligibility is being determined, if the Community Spouse’s monthly income falls below the Minimum Monthly Maintenance Needs Allowance (“MMMNA”), then MCCA contemplates two methods of raising her income up to the MMMNA. First, a portion of the Institutionalized Spouse’s income may be transferred to her to bring her income up to the MMMNA. Second, the CSRA may be increased by an amount sufficient to purchase additional income for the Community Spouse. Each process would take place at the same time as or after the Institutionalized Spouse is determined eligible for Medicaid.

MCCA protects low income Community Spouses by providing for an income allowance that potentially diverts some or all of the Institutionalized Spouse’s income to a low-income Community Spouse. If the Community Spouse’s separate income is less than a minimum amount ($2,177.50 per month as of July 1, 2021), then a portion of the Institutionalized Spouse’s income called the Community Spouse Monthly Income Allowance is diverted to the Community Spouse to bring her monthly income up to the Minimum Monthly Maintenance Needs Allowance. If the Community Spouse has housing expenses, an excess housing allowance (up-to $653.25 in 2021) is also diverted to the Community Spouse pursuant to 42 U.S. Code § 1396r–5(d)(4). Some States such as Georgia and other maximum-maximum States allow a higher income allowance for low-income Community Spouses ($3,435.00 in 2022).

42 U.S. Code § 1396r–5(d) provides:

(1) Allowances to be offset from income of institutionalized spouse
After an institutionalized spouse is determined or re-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 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 ⅓ 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).

[Emphasis added]

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), 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)).

(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.

The amount of income diverted to a low-income Community Spouse, the Community Spouse Monthly Income Allowance, is determined under 42 U.S. Code § 1396r–5(d)(2) as the difference between the CS’s actual monthly income and the MMMNA. The MMMNA is calculated as 150 percent of the poverty level for a two-person household. In addition, the Community Spouse may qualify for an excess shelter allowance if her combined housing and utility expenses exceed 30 percent of the MMMNA. The MMMNA can be increased to a maximum level which, in 2021, is $3,259.50.

After accounting for deductions permitted under 42 U.S. Code § 1396r–5(d)(1), the Institutionalized Spouse’s remaining income is applied toward the payment of his nursing home expense. bills. This means Medicaid is a “cost-share” program, at least with regard to the applicant‘s income.

If there is insufficient marital income to fully fund the Community Spouse Monthly Income Allowance, 42 U.S. Code § 1396r–5(e)(2)(C) provides:

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.

OSAH-Dekalb-Gatto-12-2008.pdf (December 11, 2008). Community Spouse Resource Allowance administratively raised. Evidence was stipulated that the combined marital income of the couple did not result in post-eligibility income for the Community Spouse that equaled or exceeded the MMMNA. Therefore, the Community Spouse Monthly Income Allowance (CSMIA), 42 U.S.C. § 1396r-5(d)(1)(B), was inadequate to raise the Community Spouse’s post-eligibility income to the MMMNA. Under 42 U,S,C, § 1396r-5(e)(2)(C), if the CSMIA is inadequate, the CSRA may be administratively raised to generate the income necessary to raise the Community Spouse’s income to the MMMNA. Based on the stipulated evidence, the CSRA was raised and all marital resources were set aside as CSRA.

Returning to Example 3 above, if Kevin goes into the nursing home and Sally’s income is less than the MMMNA, Sally will want want a CSMIA that brings her income up to the MMMNA. In doing so, Sally would be better off if additional resources were set aside for her to generate income instead of having Kevin’s income diverted to her. The reason is that Kevin’s income (Social Security and pension) may terminate at his death. The effect of lost monthly income becomes more dramatic where Sally’s life expectancy exceeds Kevin’s significantly. The purchase of additional income was the subject of Wisconsin Department of Health and Family Services v. Blumer, 534 U.S. 473, 478 (2002). In Blumer, the Community Spouse argued she should be allowed to use excess countable resources to purchase an income stream rather than having a portion of her husband’s assets transferred to her to bring her income up to the MMMNA. She argued that MCCA requires a resource first analysis when the CSRA is enhanced to generate additional monthly income to fund the CSMIA. Wisconsin argued that an income first analysis is appropriate. The difference between the two is as follows:

Income First

“Under the income-first method, ‘community spouse’s income’ is defined to include not only the community spouse’s actual income at the time of the 1396r-5(e) hearing, but also a potential post-eligibility income transfer from the institutionalized spouse.” Blumer, at 484.

Resources First

“The resources-first method, by contrast, excludes [post-eligibility transfers] from consideration. ‘Community spouse’s income’ under that approach includes only income actually received by the community spouse at the time of the 1396r-5(e) hearing, not any anticipated post-eligibility income transfer from the institutionalized spouse pursuant to § 1396r-5(d)(1)(B). If the community spouse’s income so defined will fall below the MMMNA, the CSRA will be raised to reserve additional assets sufficient to generate income meeting the shortfall, whether or not [a transfer of income from the Institutionalized Spouse] could also accomplish that task.” Id., at 484.

The Community Spouse in Blumer argued that the resources first method is required under MCCA and that the State could not force her to use an income first approach. Unfortunately, the Supreme Court found that MCCA does not mandate one approach over another and that either may be used. Since Blumer, the Deficit Reduction Act of 2005 was enacted and it requires an income first method.

Seeking Adjustments to the CSRA or MMMNA

MCCA includes a mechanism for increasing both the CSRA and the MMMNA in certain cases. The methods by which this can be effected are described in 1396r-5(e), (d)(5) and (f)(3). Blumberg v. Tennessee Department of Human Resources, 2000 WL 1586454 (Tenn.Ct.App.) was a case where a Community Spouse sought a court adjustment of the default CSRA and MMMNA:

Frederic Blumberg (‘Blumberg’) filed a petition against his wife in the Sumner County Circuit Court, seeking all his wife’s marital assets and an increase in his minimum monthly maintenance needs allowance. On September 16, 1998, the Sumner County Circuit Court issued an Order requiring Mrs. Blumberg to pay as support for the benefit of Mr. Blumberg, all of her monthly income. Subsequently, Blumberg applied for Medicaid benefits on behalf of Mrs. Blumberg, administered by the Tennessee Department of Human Services (“DHS”), for which he was approved. On October 26, 1998, Blumberg received notice from DHS that his request for an income allocation was denied. Thereafter, Blumberg requested an administrative hearing appealing the denial of spousal allocations. On December 8, 1998, an administrative hearing with DHS was held, and Blumberg’s appeal was denied. The Chancery Court affirmed the decision of the DHS, finding that the support order was not validly adjudicated because of lack of notice to DHS.

On August 27, 1998, Mr. Blumberg had filed a petition in Circuit Court against his wife seeking a transfer of her marital property and an increase in the MMMNA. The court ordered Mrs. Blumberg to pay all of her monthly income to her husband as a community spouse allowance (increased MMMNA). Thereafter, Blumberg filed an application for Medicaid benefits and was denied. Blumberg appealed from that denial. On appeal, the Court of Appeals found that where a spouse seeks to increase the MMMNA, MCCA “sets out two different and independent avenues of procedure that can be followed in setting the increase.” Id., *2. First, 1396r-5(e)(2) gives the Community Spouse an opportunity to demonstrate needs beyond the MMMNA in an administrative Medicaid fair hearing. Alternatively, 1396r-5(d)(5) gives the Community Spouse a judicial option, by permitting her (or in this case, him) to seek 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 not be less than the amount of the monthly income so ordered.” Id., at *3.

Although the Tennessee legislature attempted to prevent Blumberg-type actions with its revision of T.C.A.§ 71-5-121, the advantage of pursuing the judicial option, in part, is the court’s familiarity with real life budgeting needs. Since MCCA does not prescribe the standard applied by the court when entering an order of support, the court has two options: first, apply the same standard used in fair hearing; second, apply the standard ordinarily applied in domestic relations cases.

OSAH-Unknown-Teate-2008 (February 5, 2008). Increase CSRA in Superior Court, followed by Application and Fair Hearing. After admission to a nursing home, but prior to application for Medicaid, the Superior Court in Glascock County issued an order setting aside all of Petitioner’s marital resources for the Community Spouse’s benefit for the purpose of generating sufficient income to reach the MMMNA. The Order was issued October 18, 2007, nunc pro tunc to July 2007 (three months prior to the Medicaid application). The resources set aside were approximately 4290,000 at a time when the default CSRA was $103,640. DFSC nonetheless denied eligibility alleging Petitioner was over resourced. The ALJ found that 42 U.S.C. § 1396r-5(d)(5) requires adjustment of the default resource allowance where an order for support has been entered. “In the current case, Petitioner made no application for benefits until after obtaining a Court order establishing a community spouse resource allowance that results in a PRA higher than that otherwise allowed for Petitioner in a manner consistent with the provisions of 42 U.S.C. § 1396r-5(f)(2)(A)(iv) and (f)(2) and (3). Whether the Superior Court order correctly determined the community spouse allocation is beyond the scope of this hearing.”   OSAH-Carroll-Schroer-2017 (March 13, 2017). Valid Court Order Increases MMMNA. Petitioner’s Community Spouse resided at home and was earning $3,031 per month. Petitioner’s wife filed a Petitioner for Support in Superior Court after Petitioner suffered a massive stroke and was admitted to a nursing home. That Petition alleged that DFCS does not take debt into account when calculating the CSRA. Petitioner’s office building had a monthly mortgage payment of $1,074 and Petitioner had unsecured credit card debt of $68,777. Due to the Community Spouse’s earnings, none of Petitioner’s income would be set aside for her under the default MMMNA calculation. A medicaid application was filed on July 29, 2016, prior to the Superior Court’s ruling on August 12, 2016 that the Community Spouse was entitled to support equal to Petitioner’s Social Security income. DFCS refused to revise its calculation of the cost-share and Petitioner appealed. Citing 42 U.S.C. § 1396r-5(d)(5), the ALJ held that federal law requires that “as a valid order of support against Petitioner exists, the Respondent must first deduct the amount of that order when determining the amount Petitioner must pay each month toward the costs of care in the institution.”

Divorce

Another “option” that may be considered in appropriate cases is divorce. Deeming between spouses terminates when the marriage terminates. In most cases, this “option” should be avoided because the emotional turmoil associated with divorce is significant and the CSRA can be set by court order, see § 1396r-5(f)(2)(iv) and (f)(3). Divorce also prevents an applicant from diverting monthly income to a Community Spouse and, among other negatives, terminates a survivor’s right to seek VA Aid and Attendance. However, where the quality of the marriage is poor and the Community Spouse’s resources are substantial, divorce may protect more resources.

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