RELATES TO:
KRS
194A.505,
205.520,
205.619,
304.14-640,
304.14-642,
38
U.S.C. 5503
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and
Family Services has responsibility to administer the Medicaid Program.
KRS
205.520(3) authorizes the
cabinet, by administrative regulation, to comply with a requirement that may be
imposed, or opportunity presented, by federal law to qualify for federal
Medicaid funds. This administrative regulation establishes spousal
impoverishment and nursing facility requirements for Medicaid eligibility
determinations for individuals for whom resources are considered for Medicaid
eligibility purposes.
Section 1.
Resource Assessment.
(1) Pursuant to
42 U.S.C.
1396r-
5(c)(1)(B),
an assessment of the joint resources of an institutionalized spouse and the
community spouse shall be made:
(a) Upon
request of either spouse at the beginning of a continuous period of
institutionalization of the institutionalized spouse; and
(b) Upon receipt of relevant documentation of
resources.
(2) Resources
that have been protected from estate recovery due to a long-term care
partnership insurance policy shall be excluded from the eligibility
determination by the eligibility worker at the time of application.
(3) An assessment shall contain the total
value of the joint resources and computation of the spousal share.
(4) The department shall complete the
assessment within forty-five (45) days following submission of complete
documentation or verification.
(5)
Upon completion of a resource assessment, each spouse shall:
(a) Receive a copy of the assessment;
and
(b) Be notified that the right
of appeal of the assessment shall exist at the time the institutionalized
spouse applies for Medicaid.
Section 2. Protection of Income and Resources
of the Couple for Maintenance of the Community Spouse.
(1) The income provisions established in this
subsection shall apply for an individual beginning a continuous period of
institutionalization on or after September 30, 1989.
(a) Except as provided in paragraph (b) of
this subsection, during a month in which an institutionalized spouse is in the
institution, income of the community spouse shall not be deemed available to
the institutionalized spouse.
(b)
In determining the income of an institutionalized spouse or community spouse,
after the institutionalized spouse has been determined or redetermined to be
eligible for Medicaid, the provisions of
42 U.S.C.
1396r-
5(b)(2)
shall apply.
(2) The
resource provisions established in this subsection shall apply for an
individual beginning a continuous period of institutionalization on or after
September 30, 1989.
(a) Except as provided in
subsection (4)(b) of this section, in calculating the resources of an
institutionalized spouse at the time of an initial eligibility determination
for a benefit under Medicaid, the resources held by either the
institutionalized spouse, community spouse, or both, shall be considered to be
available to the institutionalized spouse.
(b) The following protected amounts shall be
deducted from a couple's combined countable resources at the time of the
determination of initial eligibility of the institutionalized spouse:
1. The greater amount of:
a. The spousal share which shall not exceed a
maximum of $60,000 to be increased for each calendar year in accordance with
42 U.S.C.
1396r-
5(g); or
b. The state resource standard;
and
2.
a. If applicable, an additional amount
transferred under a court support order; or
b. If applicable, an additional amount
designated by a hearing officer.
(c) The institutionalized spouse shall not be
ineligible by reason of resources determined under paragraphs (a) and (b) of
this subsection to be available for the cost of care in the following
circumstances:
1. The institutionalized spouse
has assigned to the department his or her right to support from the community
spouse;
2.
a. The institutionalized spouse lacks the
ability to execute an assignment due to physical or mental impairment;
and
b. The state has the right to
bring a support proceeding against a community spouse without the assignment;
or
3. The department
determines that denial of eligibility would work an undue hardship.
(d) After eligibility for benefits
is established for the individual:
1. 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 a Medicaid benefit, the resources of the community spouse shall
not be deemed available to the institutionalized spouse; and
2. Resources of the institutionalized spouse
protected for the needs of the community spouse shall be considered available
to the institutionalized spouse if the resources are not transferred to the
community spouse within six (6) months of the initial eligibility
determination.
(e) The
equity value of an automobile in excess of the limits established by
907
KAR 20:025 shall not be included as a countable
resource.
(3) The
provisions established in this subsection shall apply with regard to protecting
income for a community spouse.
(a) After an
institutionalized spouse is determined or redetermined to be eligible for
Medicaid, in determining the amount of the spouse's income that is to be
applied monthly to payment for the costs of care in the institution, there
shall be deducted from the spouse's monthly income the following amounts in the
following order:
1. A personal needs
allowance of forty (40) dollars plus a mandatory withholding from income,
including a mandatory payroll deduction that is a condition of employment and
federal, state, and local taxes that the government requires the payer to
deduct before payment is made to the payee;
2. A community spouse monthly income
allowance to the extent income of the institutionalized spouse is made
available to, or for the benefit of, the community spouse;
3. A family allowance determined in
accordance with the definition of other family member's maintenance standard;
and
4. An amount for incurred
expenses for medical or remedial care for the institutionalized
spouse.
(b)
1. The community spouse income allowance
shall be the sum of the standard maintenance amount and the excess shelter
allowance, not to exceed the community spouse maintenance standard.
2. The community spouse maintenance standard
shall be set at $1,500 per month, to be increased for each calendar year in
accordance with
42 U.S.C.
1396r-
5(g).
(c) If a court has entered an
order against an institutionalized spouse for monthly income for the support of
the community spouse, the community spouse income allowance for the spouse
shall not be less than the amount ordered.
(4) The provisions established in this
subsection shall apply regarding a transfer of resources from an
institutionalized spouse.
(a)
1. An institutionalized spouse may, without
regard to the prohibition against disposal of assets for less than fair market
value, transfer to the community spouse, or to another for the sole benefit of
the community spouse, an amount equal to the spousal protected resource amount
to the extent the resources of the institutionalized spouse are transferred to,
or for the sole benefit of, the community spouse.
2. The transfer shall be made as soon as
practicable after the initial determination of eligibility, taking into account
the time necessary to obtain a court order under paragraph (c) of this
subsection.
(b)
1. The spousal protected resource amount
shall be the greater of:
a. The spousal share
which shall not exceed a maximum of $60,000 to be increased for each calendar
year in accordance with
42 U.S.C.
1396r-
5(g);
or
b. The state spousal resource
standard.
2. The state
spousal resource standard shall be set at $20,000.
3. For an individual, the spousal protected
resource amount may be a higher amount established by a hearing officer or a
higher amount transferred under a court order as specified in paragraph (c) of
this subsection.
(c) If
a court has entered an order against an institutionalized spouse for the
support of a community spouse, the prohibition against disposal of assets for
less than fair market value shall not apply to the amount of resources
transferred pursuant to the order for the support of the spouse.
(5) Except for a transfer of
resources to the community spouse as specified in subsection (4) of this
section, the transfer of resource policies established by
907
KAR 20:030 shall apply.
(6)
(a) The
department shall send the notice specified in paragraph (b) of this subsection
to both spouses upon a:
1. Determination of
eligibility for Medicaid of an institutionalized spouse; or
2. Request by:
a. The institutionalized spouse;
b. The community spouse; or
c. A representative acting on behalf of
either spouse.
(b) The notice shall state the:
1. Amount of the community spouse monthly
income allowance;
2. Amount of a
family allowance, if any;
3. Method
of computing the amount of the community spouse resources allowance;
and
4. Spouse's right to an
administrative hearing in accordance with 907
KAR
20:060.
(7)
(a) Both the institutionalized spouse and
community spouse shall be entitled to an administrative hearing in accordance
with
907
KAR 20:060 if the spouse is dissatisfied with the
action of the agency including determination of the following:
1. The community spouse monthly income
allowance;
2. The amount of monthly
income determined to be otherwise available to the community spouse;
3. The attribution of resources at the time
of the initial eligibility determination; or
4. The determination of the community spouse
resource allowance.
(b)
If either the institutionalized spouse or community spouse establishes during
the administrative hearing that the community spouse needs income above the
level otherwise provided by the monthly maintenance needs allowance, due to an
exceptional circumstance resulting in significant financial duress, an amount
adequate to provide the necessary additional income shall be substituted for
the monthly maintenance needs allowance.
(c) If either spouse established during the
hearing process that the community spouse resource allowance, in relation to
the amount of income generated by an allowance, is inadequate to raise the
community spouse's income to the monthly maintenance needs allowance, there
shall be substituted for the community spouse resource allowance an amount
adequate to provide the monthly maintenance needs allowance.
Section 3. Specified
Individuals in Nursing Facilities. For an individual who is aged, blind, or has
a disability and who is in a medical institution or nursing facility but does
not have a community spouse, the requirements established in this section with
respect to income limitations and treatment of income shall apply.
(1)
(a) In
determining eligibility, the appropriate medically needy standard or special
income level, disregards, and exclusions from income shall be used.
(b) In determining patient liability for the
cost of institutional care, gross income shall be used as provided in
subsections (2) and (3) of this section.
(2)
(a)
Income protected for basic maintenance shall be forty (40) dollars monthly plus
mandatory withholdings.
(b)
Mandatory withholdings shall:
1. Include
minimum state and federal taxes; and
2. Not include court-ordered child support,
alimony, or similar payment resulting from an action by the
recipient.
(3) An amount excluded under a plan to
achieve self-support, as an impairment related work expense, or a blind work
expense (BWE) shall be considered an increased personal needs allowance for a
Medicaid recipient except a recipient for whom a quarterly spenddown process as
established in
907
KAR 20:020 is applicable.
(4) Income in excess of the amount protected
for basic maintenance shall be applied to the cost of care except as provided
in this subsection.
(a) Available income in
excess of the basic maintenance allowance shall be first conserved as needed to
provide for the needs of a minor child up to the appropriate family size amount
from the scale as established by
907
KAR 20:020, Section 1(1).
(b) Remaining available income shall be
applied to the incurred costs of medical and remedial care that are not subject
to payment by a third party (except that the incurred costs may be reimbursed
under another public program of the state or political subdivision of the
state), including Medicare and health insurance premiums or medical care
recognized under state law but not covered under the state's Medicaid
plan.
(5) The basic
maintenance standard allowed an individual during the month of entrance into or
exit from the nursing facility shall take into account the home maintenance
costs.
(6) If an individual loses
eligibility for a supplementary payment due to entrance into a participating
nursing facility and the supplementary payment is not discontinued on a timely
basis, the amount of an overpayment shall be considered as available income to
offset the cost of care to the Medicaid Program.
(7)
(a) An
SSI benefit payment, mandatory state supplement payment, or optional state
supplement payment received by a specified institutionalized Medicaid eligible
individual in accordance with
42 U.S.C.
1382(e)(1)(G) shall be
excluded from consideration as either income or a resource.
(b) The payment shall not be used in the
posteligibility process to increase the patient liability.
(8)
(a)
Ninety (90) dollars of Veterans Affairs benefits received by a veteran or the
spouse of a veteran shall be excluded from consideration as income.
(b) The ninety (90) dollars shall not be
counted in the eligibility or the posteligibility calculation.
(9) Veterans Affairs payments for
unmet medical expenses and aid and attendance shall:
(a) Be excluded in a Medicaid eligibility
determination for a veteran or the spouse of a veteran residing in a nursing
facility;
(b) Be excluded in the
posteligibility determination for a veteran or the spouse of a veteran residing
in a nonstate-operated nursing facility; and
(c) Not be excluded in the posteligibility
determination process for a veteran or the spouse of a veteran residing in a
state-operated nursing facility.
(10) Income placed in a qualifying income
trust established in accordance with
42
U.S.C.
1396p(d)(4) and
907 KAR 20:030, Section
3(5), shall be counted in the posteligibility determination.
Section 4. Special Needs
Contributions for Institutionalized Individuals.
(1) A voluntary payment made by a relative or
other party on behalf of a nursing facility resident or patient shall not be
considered as available income if made to obtain a special privilege, service,
or item not covered by the Medicaid Program.
(2) A special service or item shall include
television or telephone service, private room or bath, or a private duty
nursing service.
Section
5. Applicability.
(1) The
provisions and requirements established in this administrative regulation shall
not apply to an individual whose Medicaid eligibility is determined:
(a) Using the modified adjusted gross income
standard pursuant to
907
KAR 20:100; or
(2) Resources shall not be considered for
eligibility purposes for an individual:
(a)
Whose Medicaid eligibility is determined using the modified adjusted gross
income standard pursuant to
907
KAR 20:100; or
(b) Between the age of nineteen (19) and
twenty-six (26) years:
1. Who formerly was in
foster care;
2. Who aged out of
foster care while receiving Medicaid coverage; and
3. For whom the Medicaid eligibility
standards are established in
907
KAR 20:075.