In this Chapter, we’re addressing protections for the Community Spouse of an Institutionalized Spouse. 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).
We will not address specific planning strategies in this Chapter as those will be covered later.
- Opening Comments regarding the Medicaid Community Spouse
- MCCA’s Legislative History
- Protecting Resources for the Community Spouse
- Transfer Penalties and the Community Spouse
- Potential Redetermination When Moving to a New State
- Protecting Income for the Community Spouse
- Post-Eligibility Treatment of the Institutional Spouse’s Income
- Seeking Adjustments to the CSRA or MMMNA
- Divorce and the Community Spouse
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Promissory Notes
When the Deficit Reduction Act of 2005 changed 42 U.S.C. § 1396p, new restrictions were imposed on promissory notes. Subsection (c)(1)(I) note provides that the purchase of a promissory notes is treated as a transfer subject to the penalty rules unless the note meets the following guidelines: (I) For purposes of this paragraph with respect […]
Refusal to Answer Medicaid’s Questions Justified Denial of Eligibility
In Lamle ex rel. Lamle v. Shropshire (W.D. Oklahoma 5/29/2024), a United States District Court upheld a denial of benefits where three Medicaid applicants refused to answer questions about promissory notes. Penelope Lamle, Marilyn Garrison and Maxine Houston each loaned money to others in exchange for a promissory note. Lamle and Garrison made loans to […]
How much protection does a Medicaid Asset Protection Trust really provide?
In Hammerberg v. Department of Human Servs. (Minn. Ct. App. 4/22/2024), the State made an estate recovery claim against what appears to have been an income only trust. Very little of the trust language appears in the decision, but the “trust instrument required the trustee to pay all income derived from the trust to the” […]
TennCare’s Medicaid Renewal Process was Illegal and Flawed
The Tennessee Justice Center and its legal partners brought a class action in the U.S. District Court for the Middle District of Tennessee alleging that TennCare’s for reevaluating eligibility was defective and failed to provide notice and an opportunity for a hearing. TJC alleged that TennCare’s policies and practices caused thousands of Tennesseans to lose […]
Georgia Medicaid Waiver Programs
Section 1115 of the Medicaid statute allows sates to test new or existing ways to deliver and pay for health care services in Medicaid and the Children’s Health Insurance Program (CHIP). The home health waivers are designed to meet the needs of people who prefer to get long-term care services and supports in their home […]
Locating Medicaid Law
Sometimes finding Medicaid law is tough, but we hope to give you resources here. Federal and state statutes, regulations and case law is available to subscribers of LEXIS and Westlaw. The federal statute, which is Title XIX of the Social Security Act, is at 42 U.S.C. § 1396 et seq. (the “Medicaid Act”). The federal […]
Medicaid Estate Recovery is Required
At common law there is no obligation to reimburse the government for financial support and services received while impoverished. When the Medicaid Act was enacted, Congress gave States the option of pursuing estate recovery and, until 1993, estate recovery remained optional. Now, within the parameters of the federal rule, States must pursue estate recovery (1) […]
Structure of the Medicaid Program
“Each participating State develops a plan containing reasonable standards . . . for determining eligibility for and the extent of medical assistance” within boundaries set by the Medicaid statute and the Secretary of Health and Human Services.” Wis. Dep’t of Health & Family Servs v. Blumer, 534 U.S. 473 (2002) (quoting Schweiker v. Gray Panthers, […]
Introduction to Medicaid Estate Recovery
Medicaid, as opposed to Medicare, is a health insurance program, jointly funded by the state and federal governments that pays for health care for America’s poor. See Medicaid Act (Title XIX of the Social Security Act), 42 U.S.C. § 1396 et seq. Not everyone is eligible for medical assistance; only those persons who fall within […]
Idaho Medicaid Agency Sets Aside Deeds to Grandchildren in Estate Recovery Action
In State of Idaho v. Beason, 546 P.3d 684 (2024), the Medicaid agency filed an estate recovery claim in Juanita Gilbert’s estate. she received Medicaid benefits from 1996 until her death in 2015, totaling $137,023.29 and, after she died, the State wanted its money back. Juanita and her husband, Robert, owned real property in Butts […]
