8144 Spousal Impoverishment Provisions - Under federal law, a married couple is allowed to protect a portion or all of their combined nonexempt resources and income when either the husband or wife requires care in a medical institution for at least 30 consecutive days, including situations in which the institutionalized spouse dies prior to the 30th day in the institution. As a result such protected resources and income would not be considered in determining the medical eligibility of the institutionalized spouse. The law also provides for income to be protected for dependent family members and for the consideration of only the institutionalized spouse's own income in determining his or her eligibility beginning with the first month of institutionalization.
The following policies are only applicable in those instances in which one spouse lives in the community (including HCBS arrangements) and the other spouse resides in a medical institution. They do not apply to single individuals or to married couples where both members enter an institution or remain in the community. The resource provisions apply whether or not the facility the husband or wife enters is Medicaid approved. The income provisions apply only where the facility is Medicaid approved. In addition, the income provisions are not applicable to persons in adult care homes whose financial eligibility is determined based on the spenddown provisions of 8172.2 (2)(b).
Length of institutionalization must be at least 30 consecutive days, except in situations in which the institutionalized spouse dies prior to the 30th day. Verification of the length of stay is required. If the length of care will not exceed the month the care begins and the two following months, these provisions would not be applied based on using the temporary stay policy referenced in 8113 unless beneficial to the client for eligibility purposes, or the institutionalized spouse dies prior to the 30th day in the institution.
The spousal impoverishment provisions contained in this section shall be applicable to all legally married couples, including common-law and same sex marriages. The marriage relationship exists until legally terminated. Separated and legally separated couples continue to be married and therefore may divide assets and allocate income.
8144.1 Spousal Resource Provisions - The following provisions are applicable to the consideration of the couple's resources. The methods outlined to determine the community spouse resource allowance apply regardless of any other division of marital property. No adjustments will be made in the amount of the community spouse resource allowance, including divisions made through prenuptial and postnuptial agreements or court orders, unless it is ordered through the fair hearing process. A fair hearing officer may grant an increase to the community spouse resource allowance as outlined in 1619.
NOTE: The initial resource test provisions of 8141 shall apply in determining the eligibility of the institutionalized spouse if he or she entered the institution on or after September 30, 1989. If the institutional arrangement began prior to September 30, 1989, the provisions of 8142 (1) are applicable.
Community 
	 Spouse Resource Allowance - Based on the total combined nonexempt 
	 resources owned by the couple in the month of application, the community 
	 spouse resource allowance shall be the greater of: the minimium allowance 
	  or 
	 one half of the value of the couple’s nonexempt resources owned at 
	 the time the spouse M-3  (Notice of Intent to Allocate Income), 
	 not to exceed the maximum allowance.
	 
	 
Assessment 
	 Process - In order to determine 
	 the community spouse allowance, an assessment of the resources owned 
	 by the couple (either singly or jointly) at the time the Institutionalized 
	 spouse first entered long term care must be made. Resources which 
	 would have been counted at that time are to be considered regardless 
	 of their status at the time of application. If the total resources 
	 varied within this month, the highest value obtained during that month 
	 shall be used.
	 
The ES-3162 shall be used for this 
	 purpose. Either spouse can request such an assessment be made without 
	 a formal application for assistance. If the assessment is done without 
	 an application for assistance, the couple shall be informed of the 
	 outcome of the assessment including the total nonexempt resources 
	 which were considered and the community spouse's share of those resources 
	 based on the determination described above. A copy of the assessment 
	 form is also to be provided to the couple. The original is to be retained 
	 in the case file for use in determining eligibility at the time a 
	 formal application is filed. The couple does not have the right to 
	 a fair hearing concerning the assessment until the time a formal application 
	 is filed.
	 
If an application is not taken 
	 at the time of assessment, a "pseudo" application shall 
	 be registered in KEES to track the resource determination. The normal 
	 registration process would be used including the client's name, date 
	 of birth, and SSN. In addition, the case should be assigned to the 
	 MS program. Upon completion of the assessment and notification to 
	 the couple, the application shall be denied.  No formal denial 
	 notice would be sent. However, if the assessment shows there to be 
	 eligibility for the institutionalized spouse based on the community 
	 spouse resource allowance, a formal application shall be taken and 
	 processed at that time.
	 
If the individual has been 
	 in and out of an institutional arrangement since September 30, 1989, 
	 the first month of entrance which began after that date shall be used 
	 for assessment purposes. If the individual first entered a hospital 
	 and then goes directly into an adult care home, the month he or she 
	 first entered the hospital shall be used since the institutional arrangement 
	 has been continuous.
	
	Only nonexempt resources are to be considered. This would include such 
	 things as checking and savings accounts, land or buildings other than 
	 an exempted home, and life insurance with a face value of more than 
	 $1,500. Thus, any resources that are counted toward the allowable 
	 resource limits must be considered. (See 5000.) 
	 Exempted resources, such as the home and one automobile, would not 
	 be considered in determining the community spouse resource allowance.
	
	NOTE: The special treatment of resources contained 
	 in an available trust (5330 
	 and 5430) does 
	 not apply to the assessment process. Trust resources shall be considered 
	 exempt or countable based on the non-trust treatment of assets. Therefore, 
	 a residence or primary vehicle contained in an available trust would 
	 be an exempt resource in determining the Community Spouse Resource 
	 Allowance. Those same trust assets would still be countable when determining 
	 the amount of resources available to the couple in the eligibility 
	 process.
	 
The 
	 couple will need to provide any necessary evidence to document the 
	 amount of resources owned at the time the applicant/recipient began 
	 long term care as well as those currently owned if an application 
	 is being made and a period of time has elapsed since the start of 
	 long term care. Any unverified resources owned at the time long 
	 term care began shall not be included in determining the Community 
	 Spouse Resource Allowance.  See 1322.2 
	 (3).
	 
The minimum and maximum resource 
	 allowance limits are subject to change annually based on increases 
	 in the federal customer price index (CPI). Any increase in standards 
	 will only affect those who apply or request an assessment on or after 
	 the effective date of the increase. The resource standards in place 
	 at the time the assessment is actually calculated shall be used.                                                                                                                                                                               
	
The M-2 (Notice of Intent to Transfer Resources) shall be sent to the applicant for completion and return prior to determination of eligibility. The form is designed to notify the applicant of the resource transfer process and of his/her obligation to make the necessary transfer(s) upon notice of approval. By signing the form, the applicant agrees to make the transfer(s) based on the agency determination. Either spouse may sign the form, but both spouses are encouraged to sign. If the applicant fails to return the completed form, the application may be denied for failure to provide information.
Implementation 
	 of the Resource Allowance and Transfer Provisions - Once the assessment 
	 process is completed, the amount of the community spouse resource 
	 allowance is then determined based on the parameters of item (1) above. 
	 This amount is then compared to the current total nonexempt resources 
	 of the couple to determine the amount of resources which can be protected.
	 
If, based on the community 
	 spouse resource allowance, the institutionalized spouse is otherwise 
	 eligible, the couple must then transfer sufficient resources to the 
	 community spouse to equal the allowance if the combined resources 
	 are mostly jointly owned between the husband and wife or primarily 
	 owned solely by the institutionalized spouse. If such transfer does 
	 not occur, the resources will be considered for all months following 
	 the month of application based on ownership.
	 
The 
	 agency shall notify the individual of the outcome of the resource 
	 assessment.  By 
	 earlier signing and returning the  M-2  (Notice 
	 of Intent to Transfer Resources) 
	 the individual has already agreed to make the necessary transfer(s). 
	 The couple then has 90 days from the date of notification of approval 
	 to transfer the necessary resources to the community spouse. If there 
	 is no immediate eligibility, such notice is not required and the couple 
	 can pursue the necessary transfers prior to reapplying.
	 
If 
	 the spouse in long term care is unable to help carry out the transfer 
	 or give his or her consent to the transfer because of disability, 
	 a period of up to one year is allowed for the community spouse to 
	 carry out the transfer. The spouse must seek court action (through 
	 conservatorship or other methodology) to gain authority to do so on 
	 behalf of the institutionalized spouse during this period. Documentation 
	 of this would be required.
	 
The 90 day/1 year time periods 
	 referred to above can be further extended for good cause. Potential 
	 good cause reasons would include legal impediments which may prohibit 
	 liquidation of some property or extenuating circumstances beyond the 
	 control of either or both spouses that delay transfer activity such 
	 as an unexpected illness or hospitalization or untimely cooperation 
	 by a necessary third party (joint property owner, life insurance company, 
	 etc.). In such instances, the couple or spouse must continue to try 
	 to overcome these obstacles and present evidence of their attempts. 
	 The transfer period can then be extended for as long as necessary 
	 to complete the division. In such instances in which the transfer 
	 was not completed due to a legal impediment on a piece of property, 
	 once the impediment is overcome and the property becomes available, 
	 such property would then be subject to transfer pursuant to the determined 
	 community spouse resource allowance.
	 
In order to transfer resources, 
	 the couple may be required to take such action as setting up separate 
	 savings accounts, changing ownership on titles and deeds, or liquidating 
	 property and dividing the proceeds. It is important that the spouses 
	 transfer resources in such a way that the resulting ownership interest 
	 of each spouse in the resources is clearly designated and separately 
	 identifiable. Once the property has been divided into separate shares, 
	 either spouse may have their name placed on the resource of the other 
	 for convenience purposes if their access to the property is limited 
	 to acting as an agent for the other spouse.
	 
Documentation of how the transfer 
	 was carried out and any subsequent changes must be included in the 
	 case file. In addition, staff are to refer all cases in which a resource 
	 transfer under these provisions has occurred to KDHE-DHCF Policy. 
	 This shall be accomplished by sending a memorandum which indicates 
	 the type of transfer and how it was or will be accomplished. This 
	 information is to be sent at the time of case approval for new applicants 
	 or at the time the intent notice is returned for current recipients. 
	 KDHE-DHCF Policy  will then serve as a central clearinghouse 
	 for all spousal impoverishment activity and information.
	 
Effect 
	 of Transfer Period on Eligibility - Resources owned solely by 
	 the community spouse should not be considered available to the institutionalized 
	 spouse beginning in the month following the month the institutionalized 
	 spouse is determined to be initially eligible (including prior eligibility). 
	 Resources to be transferred to the community spouse in accordance 
	 with his or her resource allowance shall be deemed to have been transferred 
	 during the 90 day/1 year transfer period described above. Eligibility 
	 could then be approved as early as the first month in the prior medical 
	 period if the institutionalized spouse is otherwise eligible.
	 
Case processing shall not 
	 be delayed because of the permitted transfer period as long as sufficient 
	 evidence is presented to determine that the transfer will result in 
	 eligibility. If the transfer will not result in eligibility because 
	 the client still has excess resources, eligibility must be denied 
	 and the record of the assessment and community spouse resource allowance 
	 will need to be retained in the case file for future application purposes. 
	 Such denial action can be taken immediately. The couple may then either 
	 complete the necessary transfers or wait until the institutionalized 
	 spouse's share is closer to the resource level for eligibility.
	 
For clients who are presumed eligible during the transfer period, if the couple does not follow through with the transfer within that period and does not have good cause for further extending the period, the case shall be closed as soon as possible giving timely and adequate notice. Payments made on behalf of the client up to that time shall not be regarded as overpayments. The case can be reopened if the couple later completes the transfer and provides all necessary information. However, the client would not be presumed eligible again and eligibility could be re-established beginning in the month the transfer is completed.
8144.2 Spousal Income Provisions - The following provisions are applicable to the consideration of the couple's income when one member enters a Medicaid approved facility.
Community 
	 Spouse Income Allowance - Based on the total nonexempt income 
	 of the couple, the community spouse allowance shall be determined 
	 as follows:
	 
If 
		 their combined total nonexempt gross income (or adjusted gross 
		 for the self-employed) does 
		 not exceed the monthly minimum community spouse income allowance, 
		 the income can be made totally available to the community spouse.
		 
If the 
		 combined total nonexempt gross income (or adjusted gross for the 
		 self-employed) is more than  the monthly 
		 minimum community spouse income allowance, income sufficient enough 
		 to bring the spouse's gross income up to the monthly minimum allowance 
		 can be made available. The minimum allowance can be increased 
		 up to the monthly maximum community spouse income allowance if 
		 there are excess shelter expenses as defined below.  
		 
The budgeting methodologies 
		 described in 7100 
		 shall be used to compute the income of both spouses. For self-employment, 
		 the adjusted gross income shall be computed in accordance with 
		 7122.
		 
If 
		 the applicant's/recipient's spouse has excess shelter expenses, 
		 the amount of the allowance can be increased up to the monthly 
		 maximum community spouse income allowance. Excess shelter expenses 
		 are defined in the law as the amount by which the spouse's monthly 
		 expense for rent or mortgage payment, including principal, interest, 
		 taxes, and insurance (or in the case of a condominium or cooperative, 
		 monthly maintenance charges) when added to the food assistance 
		 standard utility allowance (SUA) exceeds 30% of the previously 
		 mentioned monthly minimum income allowance cap. In instances in 
		 which utilities are included in the rental payment, the full rental 
		 payment shall still be used in computing the excess shelter allowance. 
		 Only the spouse's principal place of residence can be used to 
		 compute this allowance. 
		 
Subtract 
		 the food assistance standard utility allowance (SUA) from 30% 
		 of the monthly minimum community spouse income allowance.  This 
		 amount is then subtracted from the allowable shelter expenses 
		 to determine the amount of the excess shelter expense.  The 
		 excess shelter expense is added to the monthly minimum community 
		 spouse income allowance to determine the new enhanced allowance, 
		 not to exceed the monthly maximum community spouse income allowance.
		 
Only 
		 nonexempt income is to be considered in determining the allowance. 
		 This would include such income as Social Security, VA (other than 
		 aid and attendance benefits or amounts attributable to unusual 
		 medical expenses), or Railroad Retirement benefits, wages, income 
		 from investments, and other private retirements benefits. It would 
		 not include such income as SSI benefits, bona fide loans (not 
		 used for current living expenses), and tax refunds. Exempted income 
		 is not to be considered in determining the total income.
		 
The amount of the community 
		 spouse allowance will vary based on changes in either spouse's 
		 income and changes in shelter expenses (including a change in 
		 the food assistance standard utility allowance). In addition, 
		 as with the community spouse resource maximum levels, the monthly 
		 maximum income allowance will be adjusted annually based on the 
		 percentage increase in the federal customer price index (CPI).
		 
The amount of the allowance 
		 shall be reviewed and, if necessary, adjusted at the time of the 
		 annual review and cost of living increases. The client and/or 
		 his or her spouse must still report any changes in their income 
		 or shelter expenses within 10 calendar days of the change and 
		 the amount of the allowance would then need to be adjusted at 
		 the time of the reported change.
		 
NOTE: If a court 
		 order has been entered against an institutionalized spouse for 
		 the support of the community spouse, the community spouse income 
		 allowance shall not be less than the monthly amount of the court 
		 order, even if it exceeds the monthly maximum income allowance. 
		 In addition, if a fair hearings officer has ruled that additional 
		 income is needed by the community spouse in instances of financial 
		 duress as referenced in 1619, 
		 the allowance shall equal that amount.
		 
The M-3 (Notice of Intent to Allocate Income) shall be sent to the applicant for completion and return prior to determination of eligibility. The form is designed to inform the applicant of his/her allocation options. By signing the form the applicant agrees to the chosen allocation option. Either spouse may sign the form, but both spouses are encouraged to sign. This agreement shall be used to determine the amount of income allocation. If the applicant fails to return the completed form, eligibility shall be determined without allowing any income allocation for either the community spouse or a dependent family member.
Dependent 
	 Family Member Allowance - Each dependent family member who lives 
	 with the community spouse can receive a 
	 monthly dependent family member income allowance equal to one-third 
	 of the monthly minimum community spouse income allowance from 
	 the institutionalized spouse as long as that member's gross monthly 
	 income does not exceed the minimum community spouse income allowance 
	 standard referenced in item 1 above. If the income is in excess of 
	 this standard, no income allowance can be provided to that member.
	 
NOTE: For children 
	 under age 18 who do not live with a community spouse or where there 
	 is no community spouse, the allocation policy of 8143 
	 (4) is applicable.
	 
A family member is defined 
	 as a child, parent, or brother or sister of either spouse. Dependency 
	 may be of any kind (e.g., legal, financial, medical, etc.). The spouse's 
	 or dependent member's allegation shall be accepted without challenge 
	 unless there is a reason to question it.
	 
The income of the family member to be considered for purposes of determining eligibility for the dependent family member allowance shall be based on the same guidelines as referenced for the community spouse income allowance. The income of a legally responsible person would not be considered in this determination, only the member's own income. As the amount of the allowance is based on a percentage of the minimum community spouse income allowance standard, it will be subject to change at the time of an increase in that minimum allowance amount. The dependent family member allowance is subject to termination if the member's income changes and exceeds the minimum community spouse income allowance standard.
The family 
 member's income shall be reviewed at the time of the annual review. The 
 client and/or family member is responsible for reporting any change in 
 the member's income within 10 calendar days of the change if it exceeds 
 the above-mentioned minimum income allowance standard.
 
Implementation 
	 of Allowances and Effect on Eligibility - The community spouse 
	 and dependent family member allowances are to be computed at the time 
	 of application or at the time the care arrangement begins for ongoing 
	 recipients by using the  ES-3163.  The full permitted 
	 allowances are to be computed on this form even though the income 
	 of the institutionalized person may be insufficient to provide the 
	 full amounts. A copy of the form is to be provided to the client at 
	 the time of approval. Documentation of both spouse's income as well 
	 as the income of any dependent family member for whom an allowance 
	 will be provided is needed.
	 
It is not a requirement that 
	 an allowance be provided to either the spouse and/or family members. 
	 The institutionalized spouse has the choice to provide the full maximum 
	 allowance, a smaller portion of it, or nothing at all. For example, 
	 if the community spouse and/or dependent family members are also applying 
	 for or receiving assistance, an income allowance could adversely impact 
	 their eligibility and the institutionalized spouse may then want to 
	 provide nothing or an amount smaller than the maximum.  The choice 
	 made by the applicant on the M-3 (Notice of Intent to Allocate Income) shall 
	 be used for this purpose.   
	 
Upon receipt of M-3 (Notice of 
	 Intent to Allocate Income) 
	 form and approval of the case, the allowances shall be presumed 
	 to be made each month beginning with the month of application or the 
	 month in which the care arrangement begins for ongoing recipients. 
	 They would not be applied retroactively to any prior month. The allowances 
	 shall be deducted from the client's income each month in determining 
	 his or her obligation. The amount of the allowances shall continue 
	 to be deducted unless there are reported changes in income and/or 
	 shelter expenses which would alter or terminate the allowance or a 
	 change in the allowance limits caused by a CPI increase. The deducted 
	 amount shall also be adjusted if it becomes known that the computed 
	 allowances are not being made fully available. The case file is to 
	 be documented regarding any change.
	 
Staff are to refer all cases in which an income allowance has occurred to KDHE-DHCF Policy. This shall be accomplished by sending a memorandum which indicates the type of allowance and how it was or will be accomplished. This information is to be sent at the time of case approval for new applicants or at the time the intent notice is returned for current recipients. KDHE-DHCF Policy will then serve as a central clearinghouse for all spousal impoverishment activity and information.