Code of Maryland Regulations
Title 10 - MARYLAND DEPARTMENT OF HEALTH
Part 2
Subtitle 09 - MEDICAL CARE PROGRAMS
Chapter 10.09.24 - Medical Assistance Eligibility
Section 10.09.24.10-1 - Treatment of Income and Resources of Certain Institutionalized Spouses
Universal Citation: MD Code Reg 10.09.24.10-1
Current through Register Vol. 51, No. 19, September 20, 2024
A. Basis.
(1) Except as this regulation specifically
provides, the provisions of this regulation may not affect:
(a) The determination of what constitutes
income or resources;
(b) The
methodology and standards for determining and evaluating income and
resources;
(c) The criteria and
standards for determining financial and nonfinancial eligibility for Medical
Assistance; or
(d) Any other
provision of this chapter.
(2) In determining the eligibility for
Medical Assistance of an institutionalized spouse as defined under §B(6)
of this regulation, the provisions of this regulation shall supersede any other
provisions of this chapter which are inconsistent with them.
(3) Sections D and E of this regulation,
which concern the treatment of resources, shall apply to a person who begins a
continuous period of institutionalization on or after September 30, 1989.
Section C of this regulation, which concerns the treatment of income, shall
apply to a person who begins a continuous period of institutionalization before
or after September 30, 1989 and who remains institutionalized for a continuous
period on or after September 30, 1989. Continuity is broken by absence from an
institution for 30 consecutive days.
B. Definitions.
(1) "Community spouse" means a person who
lives in the community outside an institution and who is married to an
institutionalized spouse.
(2)
"Community spouse monthly income allowance" means the amount by which the
minimum monthly maintenance needs allowance established under §C(5) of
this regulation exceeds the amount of monthly income otherwise available to the
community spouse.
(3) "Community
spouse resource amount" means the greatest of the amounts under
§E(2)(a)-(d) of this regulation.
(4) "Continuous period of
institutionalization" means 30 consecutive days of institutional care in a
medical institution or nursing home.
(5) "Excess shelter allowance" means the
amount by which the sum of the community spouse's expenses for shelter exceeds
30 percent of the amount described under §C(5)(a) of this regulation.
Expenses for shelter include rent or mortgage payment, taxes and insurance for
the community spouse's principal residence and the standard utility allowance
used by the State under § 5(e) of the Food Stamp Act of 1977. If the
community spouse's principal residence is a condominium or cooperative, the
required maintenance charge for the condominium or cooperative shall be
included in the sum of the community spouse's expenses for shelter, and the
standard utility allowance shall be reduced to the extent the required
maintenance charge includes utility expenses.
(6) "Family member" means minor or dependent
children, dependent parents, or dependent siblings of the institutionalized or
community spouse who are residing with the community spouse.
(7) "Institutionalized spouse" means a person
who is an inpatient in a nursing facility or who is an inpatient in a medical
institution and with respect to whom payment is made based upon a level of care
provided in a nursing facility, whose average length of stay exceeds 30 days
and who is married to a person who is not in a medical institution or nursing
facility.
C. Treatment of Income.
(1) Separate Treatment of Income.
During any month in which an institutionalized spouse is in the institution,
except as provided under §C(2) of this regulation, income of the community
spouse may not be deemed available to the institutionalized spouse.
(2) Attribution of Income. In determining the
income of an institutionalized spouse or community spouse, after the
institutionalized spouse has been determined to be eligible for Medical
Assistance, the following apply:
(a) Non-Trust
Property. Except as provided under §C(2)(c) and (d) of this regulation,
unless the instrument providing the income otherwise specifically provides, if
payment of income is made:
(i) Solely in the
name of the institutionalized spouse or the community spouse, the income shall
be considered available only to that respective spouse;
(ii) In the name of the institutionalized
spouse and the community spouse, 1/2 of the income shall be considered
available to each of them; and
(iii) 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, 1/2 of the joint interest shall be considered
available to each spouse.
(b) Trust Property. In the case of a trust,
income shall be considered available to each spouse as provided in the trust
or, in the absence of a specific provision in the trust, if payment of income
is made:
(i) Solely to the institutionalized
spouse or the community spouse, the income shall be considered available only
to that respective spouse;
(ii) To
both the institutionalized spouse and the community spouse, 1/2 of the income
shall be considered available to each of them; and
(iii) 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
(iv) To both spouses and if the
interest is not specified, 1/2 of the joint interest shall be considered
available to each spouse.
(c) In the case of income not from a trust in
which there is an instrument establishing ownership, except as provided under
§C(2)(d) of this regulation, 1/2 of the income shall be considered to be
available to the institutionalized spouse and 1/2 to the community
spouse.
(d) Section C(2)(a) and (c)
of this regulation shall be 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 these sections.
(3) Protecting Income for the
Community Spouse. After an institutionalized spouse is 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 cost 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 of:
(i) $50 a month
for dates of service beginning July 1, 2003;
(ii) $60 a month for dates of service
beginning July 1, 2004; and
(iii)
For dates of service beginning July 1, 2005, an amount adjusted annually by an
amount not exceeding 5 percent to reflect the percentage by which social
security benefits are increased by the federal government to reflect changes in
the cost of living.
(b)
A community spouse monthly income allowance as defined under §B(2) of this
regulation, 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 defined under §B(5) of this regulation, equal to 1/3 of the amount
by which the amount described under §C(5)(a) of this regulation exceeds
the amount of the monthly income of that family member; and
(d) Incurred expenses for medical care or
remedial service for the institutionalized spouse that are not subject to
payment by a third party, including:
(i)
Medicare and other health insurance premiums, deductibles or co-insurance
charges, and
(ii) Necessary medical
care or remedial service recognized under the State law but not covered under
the State plan.
(4) Incurred expenses for necessary medical
care or remedial service described under §C(3)(d)(ii) of this regulation
shall be limited to the fees reimbursed by Medical Assistance which are in
effect on the date of service.
(5)
Establishment of Minimum Monthly Maintenance Needs Allowance. The minimum
monthly maintenance needs allowance for a community spouse is the sum of:
(a) The applicable percent, described under
§C(6) of this regulation, of 1/12 of the income official poverty line for
a family unit of two members; and
(b) An excess shelter allowance as defined
under §B(5) of this regulation.
(6) Applicable Percent. For purposes of
§C(5)(a) of this regulation, the applicable percent, effective as of the
following dates, is:
(a) September 30, 1989,
122 percent;
(b) July 1, 1991, 133
percent; and
(c) July 1, 1992, 150
percent.
(7) Cap on
Minimum Monthly Maintenance Needs Allowance. The minimum monthly maintenance
needs allowance established under §C(5) of this regulation may not exceed
$1,500, subject to adjustment under §G of this regulation, except as
provided under §F(3) of this regulation.
(8) 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
as defined under §B(2) of this regulation shall be not less than the
amount of the monthly income ordered.
D. Treatment of Resources.
(1) Computation of Spousal Share at the Time
of Institutionalization.
(a) Total Joint
Resources. There shall be computed, as of the beginning of the first continuous
period of institutionalization 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;
(ii) A spousal
share which is equal to 1/2 of the total value.
(b) Assessment. At the request of an
institutionalized spouse or community spouse, as of the beginning of the first
continuous period of institutionalization of the institutionalized spouse and
upon receipt of the relevant documentation of resources, the Department shall:
(i) Promptly assess and document the total
value of the resources;
(ii)
Provide a copy of the assessment and documentation to each spouse;
and
(iii) Retain a copy of the
assessment for use under this regulation.
(c) Request for Assessment When Not Part of
the Medical Assistance Application. If the request is not part of an
application for Medical Assistance, the Department may not include a notice
indicating that the spouse has the right to a fair hearing as provided for
under §F(1)(c) of this regulation, but shall require payment of a fee not
to exceed the reasonable expense of providing and documenting the
assessment.
(2)
Attribution of Resources at the Time of Initial Eligibility Determination. In
determining the resources of an institutionalized spouse at the time of
application for benefits under this chapter, regardless of any State laws
relating to community property or the division of marital property, all the
resources held by either the institutionalized spouse, the community spouse, or
both, shall be considered to be available to the institutionalized spouse, but
only to the extent that the amount of the resources exceeds the greatest of the
amounts computed under §E(2)(a)-(d) of this regulation at the time of
application for benefits.
(3)
Assignment of Support Rights. The institutionalized spouse may not be
ineligible by reason of resources determined under §D(2) of this
regulation when:
(a) The resources are
unavailable to the institutionalized spouse;
(b) Payments are not being made for the care
of the institutionalized spouse;
(c) The institutionalized spouse, or that
person's guardian or attorney in fact or representative, agrees to cooperate
with the State in bringing a criminal action for nonsupport under Family Law
Article, §§10-201 and
10-202, Annotated Code of
Maryland; and
(d) The
institutionalized spouse, if capable of executing an assignment, has assigned
all support rights from the community spouse to the State.
(4) Resources may not be considered to be
unavailable to the institutionalized spouse under §D3(a) of this
regulation if the institutionalized spouse, or:
(a) That spouse's guardian or attorney in
fact has the legal authority to withdraw, liquidate, or otherwise access those
resources; or
(b) The
institutionalized spouse's guardian or attorney in fact, has assisted in making
those resources unavailable unless it can be demonstrated, to the Department's
satisfaction, that the:
(i) Action was
primarily for a purpose unrelated to Medical Assistance eligibility,
and
(ii) Denial of eligibility
would work an undue hardship.
(5) Resources shall be considered to be
unavailable to the institutionalized spouse under §D(3)(a) of this
regulation only if the community spouse has willfully failed to, and refuses
to, pay for care of the institutionalized spouse or cannot be
located.
(6) Section D(3)(c) or (d)
of this regulation may not be considered to be satisfied if the
institutionalized spouse, or the institutionalized spouse's guardian or
attorney in fact, has taken any action or otherwise assisted in limiting his or
her support rights from the community spouse.
(7) The Department shall waive the
requirements of §D(3)(c) or (d) of this regulation if the Department
determines that denial of eligibility would work an undue hardship.
(8) 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
chapter, resources of the community spouse may not be deemed available to the
institutionalized spouse.
E. Permitting Transfer of Resources to the Community Spouse.
(1) In General. An
institutionalized spouse may, without regard to Regulation .08K of this
chapter, transfer to the community spouse, or to another for the sole benefit
of the community spouse, an amount equal to the community spouse resource
allowance as defined under §E(2) of this regulation, 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 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
§E(3) of this regulation.
(2)
Community Spouse Resource Allowance Defined. The community spouse resource
allowance is the amount by which the greatest of the following amounts exceeds
the amount of resources otherwise available to the community spouse:
(a) $12,000, subject to adjustment under
§G of this regulation;
(b) The
lesser of the spousal share computed under §D(1)(ii) of this regulation or
$60,000, subject to adjustment under §G of this regulation;
(c) The amount established under §F(4)
of this regulation; or
(d) The
amount transferred under a court order under §E(3) of this
regulation.
(3)
Transfers Under Court Orders. If a court has entered an order against an
institutionalized spouse for the support of the community spouse, Regulation
.08K of this chapter may not apply to amounts of resources transferred under
the order for the support of the spouse or a family member as defined under
§B(5) of this regulation.
F. Fair Hearing.
(1) The spouse is entitled to a fair hearing
as provided for under Regulation .14 of this chapter if either the
institutionalized spouse or the community spouse is dissatisfied with the
determination of any of the following:
(a)
Minimum monthly maintenance needs allowance as established under §C(5) of
this regulation;
(b) Determination
of the amount of monthly income otherwise available to the community
spouse;
(c) Computation of the
spousal share of resources under §D(1) of this regulation;
(d) Attribution of resources under §D(2)
of this regulation; or
(e)
Determination of the community spouse resource allowance as defined under
§E(2) of this regulation.
(2) Any hearing respecting the determination
of the community spouse resource allowance shall be held within 30 days of the
date of the request for the hearing if an application for benefits under this
chapter has been made on behalf of the institutionalized spouse.
(3) Revision of Minimum Monthly Maintenance
Needs Allowance. If either the institutionalized spouse or the community spouse
establishes that the community spouse needs income above the level provided by
the minimum monthly maintenance needs allowance due to exceptional
circumstances resulting in significant financial duress, the Department shall
substitute, for the minimum monthly maintenance needs allowance established
under §C(5) of this regulation, an amount adequate to provide the
additional income as is necessary.
(4) Revision of Community Spouse Resource
Amount. If either the institutionalized spouse or the community spouse
establishes that the community spouse resource amount, in relation to the
amount of income generated by that amount, is inadequate to raise the community
spouse's income, which shall include the amount of the community spouse monthly
income allowance, to the minimum monthly maintenance needs allowance, the
Department shall substitute, for the community spouse resource amount, an
amount adequate to provide a minimum monthly maintenance needs
allowance.
G. For services furnished during a calendar year after 1989, the dollar amounts specified under §§C(7) and E(2)(a) and (b) of this regulation shall be increased by the same percentage as the percentage increase in the consumer price index for all urban consumers between September, 1988 and the September preceding the calendar year involved.
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