Current through Register Vol. 35, No. 18, September 24, 2024
A.
Community property resource
determination methodology: Community property resource determination
methodology is used in the eligibility determination for a married applicant or
recipient who began institutionalization for a continuous period prior to
September 30, 1989.
(1) To determine the
countable value of resources, the ISD worker must:
(a) add the total value of all resources
owned by both spouses;
(b) exclude
the separate property of the non- applicant or recipient spouse; and
(c) attribute one-half of the total value of
the community property to the applicant or recipient spouse plus the value of
their separate property;
(d) the
resulting figure must be less than $2,000.
(2)
Application of community property
rules: Under community property rules, all property held by either
spouse is presumed to be community property unless successfully rebutted by the
applicant or recipient, or representative. To rebut community property status,
the applicant or recipient, or representative must document that the property
was:
(a) acquired before marriage or after a
divorce or legal separation;
(b)
designated as separate property by a judgment or decree of any court;
(c) acquired by either spouse as a gift or
inheritance; or
(d) designated as
separate property by a written agreement between the spouses, including a deed
or other written agreement concerning property held by either or both spouses
in which the property is designated as separate property.
(i) If one of the parties to this written
agreement is incompetent, legal counsel must execute the agreement on behalf of
the incompetent spouse.
(ii)
Property designated as separate by written agreement is evaluated according to
current rules regarding transfer of resources.
(iii) Income cannot be designated as separate
by an agreement between spouses; income is considered separate only if it is
derived from a resource that has been determined
separate.
B.
Spousal impoverishment:
Spousal impoverishment provisions apply if one spouse of a married couple is
institutionalized for a continuous period of at least 30 consecutive days
beginning on or after September 30, 1989. See spousal impoverishment provisions
of the Medicare Catastrophic Coverage Act of 1988 (MCCA). No comparable
treatment of resources and income is required for non-institutionalized
applicants or recipients who do not have a spouse remaining in the community.
These provisions cease to apply as of the month following the month an
applicant or recipient is no longer institutionalized or no longer has a
community spouse. If a community spouse or other dependents apply for a MAP
category of eligibility they are subject to the rules governing treatment of
income and resources for the individual applicant or recipient.
(1)
Resource assessment: A
resource assessment must be completed to evaluate a couple's resources as of
the first moment of the first day of the month one member of the married couple
is institutionalized for a continuous period of at least 30 consecutive days
beginning on or after September 30, 1989. This process is used to determine the
amount of resources which may be protected for the community spouse. See
Subparagraph (f) below for resources which must be included in the resource
assessment. The resource assessment and computation of spousal shares occurs
only once, at the beginning of the first continuous period of
institutionalization beginning on or after September 30, 1989. A new resource
assessment may be completed if it is later determined that the original
resource assessment was inaccurate. Upon the death of the community spouse, the
ISD worker may review the applicant's or recipient's resources.
(a) A MAP application does not need to be
submitted at the time the assessment is requested. A reasonable fee may be
charged for completing assessments which are not made in conjunction with the
applications. Applications for assessments are available at the ISD offices
which determine eligibility for a MAP category of institutional care. Either
member of the couple or their authorized representative may request an
assessment application.
(b) The ISD
worker must complete a resource assessment using the following criteria:
(i) one member of a married couple became
institutionalized on or after September 30, 1989 in an acute care hospital or
nursing facility for a continuous period of at least 30 consecutive
days;
(ii) the institutionalized
applicant or recipient has a spouse who remains in the community in a
non-institutionalized setting; and
(iii) the institutionalized spouse remains,
or is likely to remain, institutionalized for a period of at least 30
consecutive days based on a written statement from their physician and
supporting medical documentation; the institutionalized applicant or recipient
is considered "likely to remain" even if they do not actually remain in an
institution for 30 consecutive days if they met this condition at the beginning
of the period of institutionalization.
(c) The ISD worker explains exactly what
verification is required to complete the assessment. If the ISD worker requires
further information, the individual requesting the assessment is notified in
writing and given a reasonable time period of at least 10 working days to
provide the additional information.
(d) The institutionalized individual or their
spouse or an authorized representative is responsible for providing all
verification necessary to complete the assessment.
(e) The ISD worker completes the resource
assessment within 45 calendar days of the date of receipt of the completed and
signed assessment application unless verification is still pending by the 45th
day. In that case, the assessment is not completed until all necessary
information is provided by the institutionalized individual or their spouse or
authorized representative.
(f)
Assessments include the total value of the couple's countable resources held
jointly or separately as of the first moment of the first day of the month one
spouse became institutionalized for a continuous period of at least 30
consecutive days beginning on or after September 30, 1989. The assessment form
identifies the spousal shares and the CSRA. The couple is entitled to all
resource exclusions allowed in
8.281.500.13
NMAC except that value limits for the exempt vehicle and household goods of the
community spouse do not apply. Assets excluded under the QSLTCIP program are
counted in the spousal resource assessment. The disregarded assets are included
in determining the amount of the CSRA. The disregarded asset is not counted in
determining the applicant's or recipient's eligibility.
(g) When the assessment is complete, the ISD
worker copies all documentation used to make the determination of countable
resources and retains the documents in the case record. The ISD worker also
provides complete copies of the assessment forms to the following parties:
(i) institutionalized applicant or
recipient;
(ii) community spouse;
and
(iii) authorized
representative(s) if any.
(h) When the amount of the couple's total
countable resources has been determined, the resulting amount is divided by two
to determine the spousal shares. The community spouse is entitled to their
spousal share or the MAD minimum resource allowance, whichever is greater, up
to the applicable federal maximum standard or an amount determined at a HSD
administrative hearing or an amount transferred pursuant to a district court
order. The CSRA is the amount by which the greatest of the spousal shares or
state minimum resource allowance exceeds the amount of resources otherwise
available to the community spouse without regard to such an allowance. The CSRA
remains in effect until one of the spouses dies. The remainder of the couple's
total countable resources in excess of the CSRA is considered available to the
institutionalized spouse. If either the institutionalized spouse or the
community spouse is dissatisfied with the computation of the spousal share of
the resources, the attribution of resources or the determination of the
community spouse resource allowance, they can request a HSD administrative
hearing pursuant to 8.352.2 NMAC. Refer to 8.352.2 NMAC for a detailed
description of the HSD administrative hearing process.
(2)
CSRA standards: The state
minimum resource allowance and the federal maximum standards vary based on when
the applicant or recipient became institutionalized for a continuous period of
at least 30 consecutive days. See
8.281.500.10
NMAC for the applicable standards.
(3)
CSRA revision: The CSRA can
be revised if either of the following occurs:
(a) a different amount is determined by a HSD
administrative hearing final decision or district court decision; or
(b) inaccurate information was provided to
the ISD worker at the time the spousal share was
calculated.
(4)
Resource availability after computation of CSRA: Resources of a
couple remaining after the computation of the CSRA are considered available to
the institutionalized spouse. These remaining resources are compared to the
resource limit.
(a) From the time of the
initial determination of eligibility until the first regularly scheduled
redetermination, the CSRA is not considered available to the institutionalized
spouse.
(b) The CSRA may be applied
retroactively for the three months prior to the month of application and is not
considered available to the institutionalized spouse until the first periodic
review following initial approval.
(5)
Resource transfer after computation
of the CSRA: When eligibility has been approved for an institutionalized
spouse, resources equal to the amount of the CSRA may be transferred to the
community spouse. This transfer is intended to assist the community spouse in
meeting their needs in the community. Couples should transfer resources in the
amount of the CSRA to the community spouse as soon as possible after approval
for a MAP category of institutional care eligibility. The institutionalized
spouse or authorized representative can complete this transfer at any time
between the date of the assessment and the first periodic review 12 months
after approval.
(6)
Resource
transfers which exceed the CSRA: Resources transferred to a community
spouse at less than fair market value are not subject to transfer penalties.
Resources transferred to the community spouse in excess of the computed CSRA
are considered available to the institutionalized spouse and must be spent down
to below the resource standard before eligibility can be established. Resources
transferred to the community spouse may exceed the CSRA if an increased amount
is ordered by any court having jurisdiction or by the MAD director as part of a
HSD administrative hearing final decision.
(7)
Transfer deadlines: If the
resource transfer is not completed by the institutionalized spouse by the end
of the initial period of eligibility, the resources are considered completely
available to the institutionalized spouse beginning with the first periodic
review after the initial determination of eligibility.
(8)
Newly acquired assets: After
a continuous period of institutionalization begins, newly acquired resources or
increases in the value of resources owned by the institutionalized spouse are
countable. Recalculations of eligibility for the institutionalized spouse based
on countable resources are effective at the beginning of the month following
the month in which new resources were received or an increase occurred in the
value of resources already owned.
(a) The
institutionalized spouse may transfer newly acquired resources to the community
spouse without a penalty up to the difference between the CSRA and the state
minimum resource standard in effect as of the date of
institutionalization.
(b) After a
continuous period begins, new resources acquired by the community spouse or
increases in the value of resources which are part of the CSRA are not
considered available to the institutionalized
spouse.