An ALJ may increase the community spouse income allocation (CSIA) if the community spouse does not have enough income to pay his or her “necessary and basic maintenance needs.” In this case, the community spouse had expenses including a mortgage, credit card debt, medical debt, and high gasoline costs due to visiting her husband at a distant facility. ALJ Nancy Gagnon concluded these expenses were necessary and basic and ordered the income allocation increased for twelve months to allow for paying off the existing debt.
This decision was published with support from the Elder Law & Special Needs Section of the State Bar of Wisconsin, the Wisconsin chapter of the National Academy of Elder Law Attorneys, and Krause Financial. Thanks also to Attorney Andy Falkowski, who donated this decision from his file.
Preliminary Recitals
Pursuant to a petition filed February 27, 2012, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03, to review a decision by the Waupaca County Department of Social Services in regard to Medical Assistance (MA), a hearing was held on March 28, 2012, at Waupaca, Wisconsin. The hearing record was held open for two days for a submission from the petitioner, which was received.
The issue for determination is whether all or a portion of the petitioner’s income should be “allocated” (disregarded) under spousal impoverishment provisions.
There appeared at that time and place the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, Wisconsin 53703
By: Jane Voelker, ES Spec.
Waupaca County Department of Social Services
811 Harding Street
Waupaca, WI 54981-2087
ADMINISTRATIVE LAW JUDGE:
Nancy J. Gagnon (telephonically)
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Waupaca County.
- The petitioner lives in a nursing home. He filed an application for Institutional/Long Term Care MA and was found to be eligible beginning with March, 2010. On December 5, 2011, the county agency issued written notice to the petitioner advising that he would have to contribute $1,300.43 toward his nursing home care expense (the balance is paid for by MA) effective January 1, 2012. That notice also advises the petitioner that only the $45 personal allowance would be subtracted from his income in this nursing home liability computation.
- The petitioner has a spouse, — residing in the community. She has an average gross monthly income of $533 from Social Security. The Maximum Community Spouse Income Allocation is $2,841. Because the spouse’s gross income was under the $2,841 maximum allocation amount by $2,308, the Department automatically determined that $2,308 of the institutionalized spouse’s income would be allocated to her.
- The petitioner has gross monthly income of $3,653.46. After subtraction of the $45 statutory personal allowance and the $2,308 Community Spouse Income Allocation, the Department determined that the petitioner had $1,300.43 available to contribute toward the cost of his nursing home care.
- Ms. — has identified living expenses at hearing that total $3,456.00.
- Of the monthly expenses referred to in Finding #5, $3,456 are reasonable, basic and necessary living expenses. The petitioner has atypical expenses for the spouse of a nursing home resident in that (1) she still has a mortgage, (2) she visits her husband at a facility that is distant from her residence, and (3) she her own medical debts from cancer treatment.
- The petitioner filed this hearing request on February 27, 2012. Due to the statutory jurisdictional limit of 45 days, this Administrative Law Judge’s review is limited to the agency’s actions for February 1, 2012 forward. Wis. Stat. §49.45(5).
Discussion
Spousal impoverishment is an MA policy, created pursuant to the Medicare Catastrophic Coverage Act of 1988, which allows persons to retain assets and income that are above the regular MA financial limits. Spousal impoverishment policy applies only to institutionalized persons and their community spouses.
After an institutionalized person is found eligible, s/he may allocate some of her income to the community spouse if the community spouse’s gross monthly income does not exceed the Maximum Community Spouse Income Allocation of $2,841.00. See MA Eligibility Handbook (MEH), 18.6.2, online at http://www.emhandbooks.wisconsin.gov/meh-ebd/meh.htm. In this case, the gross income of the community spouse is $533. The Department therefore allocated $1,300.43 from the institutionalized spouse’s net income to him as the community spouse.
The community spouse argues that she cannot get by without a larger allocation. The county agency does not have discretion to allocate income to her that would cause her “income plus allocation” total to exceed $2,841. However, I have some limited discretion and have determined that Ms. — income is short of what she needs to cover basic living expenses. The statute allows the allocation to be raised to avert financial duress, created by exceptional circumstances, for the community spouse. I conclude that the Maximum Allocation must be raised to $3,456 for twelve months, to avert financial duress. Exceptional circumstances are present here: the spouse (1) has mortgage payments, (2) has high costs incurred in visiting her husband, and (3) has medical debts. See s. 49.455(8)(c), Wis. Stats. The acceptable monthly expenses verified by the community spouse are as follows:
| Mortgage/tax/HO insurance | 1058 |
| Gas/electricity/water | 337 |
| Telephone | 80 |
| Car/HO insurance | 117 |
| Gas (car) | 300 |
| Vehicle maintenance | 50 |
| Groceries | 200 |
| Home maintenance/plow/mow | 180 |
| Discover card debt ($3,929 balance) & wife’s medical debts ($8,300 balance) |
1019 (combined) |
| Wife’s health ins deductible/copays | 150 |
| Haircuts | 25 |
| Clothes/toiletries | 100 (smaller clothes size following cancer treatment) |
| TOTAL | $3456.00 |
In setting the Maximum Allocation at $3456, I accepted as accurate the budget numbers provided by the community spouse in her exhibits. The county agency may leave this $3,456 Maximum Allocation in place for twelve months. The higher amount is to allow the petitioner to pay off the Discover card and cancer treatment debts, as there is no benefit to either the petitioner or the Department in having her accumulate exorbitant credit card interest charges over a long period of time.
Conclusions of Law
- Due to exceptional circumstances, the petitioner’s spouse requires $3,456 to live on for twelve months.
THEREFORE, it is
Ordered
That the petition for review herein be remanded to the county agency with instructions to increase the petitioner’s Maximum Community Spouse Income Allocation to $3,456.00 effective with the February, 2012, cost of care liability determination. The higher allocation will remain in place through January 31, 2012. This action shall be taken within 10 days of the date of this Decision. In all other respects, the petition is dismissed
[Request for a rehearing and appeal to court instructions omitted.]
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