Section 103.075. Prevention of spousal impoverishment.

 

(1)   Applicability. For resource eligibility, this section applies to all institutionalized applicants for and recipients of MA who began a continuous period of institutionalization on or after September 30, 1989, and to their spouses. For purposes of computing income available towards the cost of an institutionalized individual's care, this section applies to all institutionalized applicants for and recipients of MA who were residing in an institution on October 1, 1989, or who entered an institution subsequent to that date, and to their spouses.

(2)   Purpose. This section implements s. 49.455 , Stats., which provides for protection of a couple's income and resources when one spouse is institutionalized and the other spouse lives in the community.

(3)   Definitions. In this section:

(a) "Community spouse" means an individual who is legally married as recognized under state law to an institutionalized spouse but is not himself or herself an institutionalized individual.

(b) "Consumer price index" means the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor.

(c) "Continuous period of institutionalization" means an individual has resided in or is likely to remain in an institution for at least 30 consecutive days.

(d) "Family member" means a minor or dependent child, dependent parent or dependent sibling of an institutionalized or community spouse who resides with the community spouse.

(e) "Institutionalized spouse" means either an individual who is in a medical institution or nursing facility and is legally married to an individual who is not in a medical institution or nursing facility or an individual who receives services under a waiver under 42 USC 1396n (c) or (d) and is legally married to an individual who is not in a medical institution or nursing facility and does not receive services under a waiver under 42 USC 1396n (c) or (d).

(f) "Medical institution" means a facility that:

1. Is organized to provide medical care, including nursing and convalescent care;

2. Has the necessary professional personnel, equipment and facilities to manage the medical, nursing and other health care needs of patients on a continuing basis in accordance with accepted professional standards;

3. Is authorized under state law to provide medical care; and

4. Is staffed by professional personnel who are responsible for professional medical and nursing services. The professional medical and nursing services shall include adequate and continual medical care and supervision by a physician, registered nurse or licensed practical nurse supervision and services and nurses' aide services sufficient to meet nursing care needs and a physician's guidance on the professional aspects of operating the institution.

(g) "Resources" does not include items excluded under 42 USC 1382b (a) or (d) or items that would be excluded under 42 USC 1382b (a) (2) (A) but for the limitation on total value established under that provision.

(4)   Assessment.

(a) An institutionalized spouse or the community spouse, or a representative acting on the behalf of either spouse, may request that an agency complete an assessment of the couple's assets for purposes of determining total countable assets of the couple and the community spouse resource allowance. If the request is not part of an application for medical assistance, the agency may charge a fee not exceeding the reasonable expenses of providing and documenting the assessment.

(b) Both the institutionalized spouse and the community spouse shall verify the assets that they own, jointly or individually, and the value of those assets at the beginning of the most recent continuous period of institutionalization.

(c) The agency shall:

1. Complete the assessment within 30 days after the date of the request for an assessment;

2. Determine and verify the total countable assets of the couple using the procedures under sub. (5) (b) 2. ;

3. Determine the community spouse resource allowance pursuant to s. 49.455 (6) (b) , Stats.; and

4. Notify in writing the institutionalized spouse and the community spouse, or a representative acting on the behalf of either spouse, of the couple's total countable assets, the community spouse resource allowance and the amount of assets that the couple may retain so that the institutionalized spouse may be asset-eligible for MA and of the right of either spouse to a fair hearing under sub. (8) after an application for medical assistance is filed.

(5)   Assets.

(a) Applicability. This subsection applies only to individuals who began their most recent continuous period of institutionalization after September 29, 1989. Those individuals who began their most recent continuous period of institutionalization before September 30, 1989, shall have their eligibility determined using asset eligibility criteria under s. DHS 103.06 (1) unless the individual left the institution or lost eligibility for a community-based services waiver program under 42 USC 1396n (c) or (d) for a period of at least 30 days and subsequently began a new continuous period of institutionalization after September 29, 1989.

(b) Eligibility determination.

1. Initial determination. The agency shall consider the total countable assets of the institutionalized spouse and his or her community spouse in determining initial MA eligibility for the institutionalized spouse.

2. Total countable assets. The agency shall count all available assets belonging to either spouse in the month for which eligibility is being determined except for the following:

a. Homestead property;

b. One vehicle, regardless of value;

c. Household and personal effects, regardless of value;

d. Burial assets and funds set aside for the purpose of meeting burial expenses, regardless of value. This includes burial trusts, burial funds, burial plots, burial insurance and other property or funds expressly set aside for burial expenses; and

e. Any other assets that would otherwise be excluded for purposes of SSI-related MA eligibility determination as provided under s. DHS 103.06 .

3. Asset limit. The agency shall compare the value of the couple's assets to the amount obtained by adding the SSI-related one person asset limit under s. 49.47 (4) (b) 3g. , Stats., to the community spouse resource allowance under s. 49.455 (6) (b) , Stats. If the couple's available assets are equal to or less than the asset limit, the institutionalized spouse is asset eligible for MA.

(c) Consideration of community spouse's assets. During a continuous period of institutionalization after an institutionalized spouse is determined to be eligible for MA, no assets of the community spouse may be considered available to the institutionalized spouse.

(d) Protected resources.

1. For the 12 months after an institutionalized spouse has been initially determined eligible for MA, an amount equal to the amount of assets comprising the community spouse resource allowance for which an institutionalized spouse has title interest that does not exceed the limits described in s. 49.455 (6) (b) , Stats., shall be exempt from consideration;

2. After 12 months, the exemption of the protected spousal asset share ceases to exist;

3. In subsequent redeterminations of eligibility after 12 months, the agency shall compare the assets of an institutionalized spouse to the SSI-related MA asset limit provided under s. 49.47 (4) (b) 3g. , Stats. If the institutionalized spouse's assets exceed those limits, he or she is ineligible for MA.

4. Limits on countable assets shall be determined as provided in par. (b) 2. as long as there is a community spouse.

(e) Exceptions to resource ineligibility. The agency may not determine an institutionalized spouse ineligible if one or more of the following conditions exists:

1. The institutionalized spouse has assigned to the state any rights to support from the community spouse;

2. The institutionalized spouse lacks the ability to execute an assignment under subd. 1. due to a physical or mental impairment but the agency has the right to bring a support proceeding against the community spouse without an assignment; or

3. The agency determines and documents in the case record that denial of eligibility would work an undue hardship for the institutionalized spouse. In this subdivision, "undue hardship" means that a serious impairment to the institutionalized individual's immediate health status exists.

(6)   Income.

(a) Income attribution.

1. No income of a community spouse may be deemed available to an institutionalized spouse applying for MA, except if a court order is in effect.

2. The agency shall count voluntary contributions of a community spouse towards the cost of his or her institutionalized spouse's care as income in determining an institutionalized spouse's eligibility and the amount that an institutionalized spouse is required to contribute towards the cost of his or her care. An agency may not request or suggest that a community spouse make a voluntary contribution toward the institutionalized spouse's cost of care.

3. Unless an institutionalized spouse establishes by a preponderance of evidence through a fair hearing that ownership interest is other than as provided under s. 49.455 (3) (b) , Stats., and this subdivision, non-trust income shall be considered the income of the person in whose name the payment is made or, if the income is paid in both spouses' names or is unspecified, half shall be considered as the income of each or, if the income is shared with others, amounts equal to each spouse's proportionate share shall be considered available.

4. The agency shall consider trust income as available based upon the specific terms of the trust. Income paid to a spouse from the trust belongs to that spouse alone. If trust income is paid to both spouses or if the percentage is unspecified, half of the income shall be considered to belong to each spouse.

5. The income eligibility standards against which an institutionalized spouse's income is tested shall be the same as those under s. DHS 103.04 (4) .

(b) Protecting income for the community spouse and dependent family members.

1. Community spouse income allowance. An MA-eligible institutionalized spouse may allocate income to his or her community spouse to provide for the monthly maintenance of the community spouse. An institutionalized spouse may allocate enough of his or her income, after deducting a personal needs allowance as provided under s. 49.45 (7) (a) , Stats., or 42 CFR 435.726 (c) in the case of an institutionalized spouse participating in a home and community-based care waiver program under s. 46.277 , Stats., to bring the community spouse's monthly income up to the amount specified in s. 49.455 (4) (b) , Stats., or an amount ordered by a court, whichever is greater. The community spouse's monthly gross income shall be determined by the agency as provided under s. 49.47 (4) (c) , Stats., without regard to the SSI-related MA deductions.

2. Family member income allowance. An MA-eligible institutionalized spouse may deduct from his or her income, sufficient funds to bring each dependent family member's monthly income up to the amount specified in s. 49.455 (4) (a) 3. , Stats., or an amount ordered by a court, whichever is greater. A dependent family member is:

a. Any minor natural or adopted child or step-child of either the institutionalized spouse or the community spouse who resides with the community spouse;

b. Any adult natural or adopted child or step-child of either the institutionalized spouse or the community spouse who is claimed as a dependent by either the institutionalized spouse or the community spouse for tax purposes under the internal revenue service code or who could be claimed as a dependent for tax purposes if a tax return were filed and who resides with the community spouse;

c. A sibling of either the institutionalized spouse or the community spouse who is claimed as a dependent by either the institutionalized spouse or the community spouse for tax purposes under the internal revenue service code or who could be claimed as a dependent for tax purposes if a tax return were filed and who resides with the community spouse; or

d. A parent of either the institutionalized spouse or the community spouse who is claimed as a dependent by either the institutionalized spouse or the community spouse for tax purposes under the internal revenue service code or who could be claimed as a dependent for tax purposes if a tax return were filed and who resides with the community spouse.

(c) Computing income available towards the cost of care. An institutionalized recipient shall apply his or her available income toward the cost of his or her care. In this paragraph, "available income" means any income remaining after the following deductions are made from the recipient's gross monthly income:

1. A personal needs allowance as provided under s. 49.45 (7) (a) , Stats., or 42 CFR 435.726 (c), as appropriate;

2. The community spouse monthly income allowance under par. (b) 1. that is actually made available by the institutionalized spouse to the community spouse or to another individual for the benefit of the community spouse;

3. The total family member income allowance calculated under par. (b) 2. , whether or not actually made available by the institutionalized spouse to a family member; and

4. The amount incurred as expenses for remedial or medical care for the institutionalized spouse as follows:

a. For an individual participating in a community-based care waiver program, the amount incurred as expenses for remedial or medical care and the cost of the individual's health insurance premiums; and

b. For an individual residing in a medical institution, the cost of the institutionalized spouse's health insurance premiums.

(7)   Notice. The agency shall notify both spouses when it determines that an institutionalized spouse is eligible for MA, or it shall notify the spouse who requested a determination of MA eligibility. The notice shall be in writing and shall include the following information:

(a) The amount of the community spouse monthly income allowance calculated under sub. (6) (b) 1. ;

(b) The amount of any family allowance calculated under sub. (6) (b) 2;

(c) The amount of the couple's total countable assets determined under sub. (4) (c) ;

(d) The amount of the community spouse resource allowance and the method used to calculate the allowance under sub. (4) (c) 3. ;

(e) The amount of income that the institutionalized spouse is required to contribute toward the cost of his or her care; and

(f) Each spouse's right to a fair hearing under sub. (8) concerning ownership or availability of income or resources and the determination of the community spouse monthly income or resource allowance.

(8)   Fair hearing.

(a) An institutionalized spouse or a community spouse may request a fair hearing in accordance with the procedures set out in s. DHS 104.01 (5) in regard to any of the following:

1. The determination of the community spouse monthly income allowance under sub. (6) (b) 1. ;

2. The determination of the amount of the monthly income otherwise available to the community spouse used in the calculation under sub. (6) (b) 1. ;

3. The amount of the couple's total countable assets determined under sub. (4) (c) ;

4. The determination of the spousal share of resources under sub. (4) (c) 3. ; and

5. The determination of the community spouse resource allowance under sub. (4) (c) 3.

(b) If the institutionalized spouse has made an application for MA and a fair hearing is requested under par. (a) , the agency shall hold the hearing within 30 days after the request.

(c) If either spouse establishes at a fair hearing that, due to exceptional circumstances resulting in financial duress, the community spouse needs income above the level provided by the minimum monthly maintenance needs allowance determined under sub. (6) (b) , the hearing officer shall determine an amount adequate to provide for the community spouse's needs. In this paragraph,"exceptional circumstances resulting in financial duress" means situations that result in the community spouse not being able to provide for his or her own necessary and basic maintenance needs. The agency shall use the amount determined by the hearing officer in place of the minimum monthly maintenance needs allowance determined under sub. (6) (b) .

(d) If either spouse establishes at a fair hearing that the community spouse resource allowance determined by the agency under sub. (4) (c) 3. does not generate enough income to raise the community spouse's income to the minimum monthly maintenance needs allowance under s. 49.455 (4) (c) , Stats., the hearing officer shall establish an amount to be used under sub. (5) (b) that results in a community spouse resource allowance that generates sufficient income to raise the community spouse's monthly income to the minimum monthly maintenance needs allowance under s. 49.455 (4) (c) , Stats.

(e) Neither the institutionalized spouse nor the community spouse shall have the right to a fair hearing under this section until after an MA application is filed and MA eligibility and the benefit level are determined.

History: Cr. Register, March, 1993, No. 447 , eff. 4-1-93; correction in (8) (a) (intro.) made under s. 13.92 (4) (b) 7. , Stats., Register December 2008 No. 636 .