DHA Case No. MRA 207266 (Wis. Div. of Hearings and Appeals April 27, 2023) (DHS) ↓ Download PDF
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, ALJ Jason Grace increased the CSIA to make the spouse’s income $4,155.98 total, finding expenses such as car insurance, storage rental, cable, cell phone, and life insurance to be necessary and basic.
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Pursuant to a petition filed on December 31, 2022, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03, to review a decision by the Dane Cty. Dept. of Human Services regarding Medical Assistance (MA), a hearing was held on April 4, 2023, by telephone. A hearing scheduled for March 22, 2023, was rescheduled with the consent of petitioner’s representative.
The issue for determination is whether petitioner’s community spouse income allocation may be increased.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
Dane Cty. Dept. of Human Services
1819 Aberg Avenue
Madison, WI 53704-6343
ADMINISTRATIVE LAW JUDGE:
Jason M. Grace
Division of Hearings and Appeals
Findings of Fact
- Petitioner (CARES # —) is a resident of Dane County. He is enrolled in nursing home long term care. His wife remains in the community.
- Per a notice of November 14, 2022, petitioner’s patient liability for Nursing Home Long-Term Care was $5,576.06 as of December 1, 2022. A notice of December 5, 2022 indicated the petitioner’s patient liability as of January 1, 2023, was $5,949.56.
- Petitioner’s community spouse has gross monthly income of $1,484.90 in Social Security benefits. Petitioner’s monthly gross income is $7,726.22. The agency allowed the petitioner to allocate up to $1,566.76 of his income to his community spouse.
- The community spouse’s monthly necessary and basic maintenance expenses total $4,155.98. This includes rent, food, utilities, car payment, car insurance, other monthly expenses associated with ownership of the vehicle, personal property and rental insurance, various forms of health insurance, storage rental, cable, cell phone, and life insurance. This does not include nonallowable monthly expenses totaling $203.29, consisting of $21.07 for Netflix, $108.38 for Mepco, and $73.84 for an unidentified expense.
Medical Assistance rules require institutionalized persons to “apply their available income toward the cost of their care.” Wis. Admin. Code §DHS 103.07(1)(d). However, a married institutionalized Medical Assistance recipient may allocate income to his or her spouse who resides in the community to guard against that “community spouse” from falling into poverty. See Wis. Stat. §49.455; 42 U.S.C. §13964-5; and Medicaid Eligibility Manual (MEH) §§18.1 and 18.6. The agency may set a community spouse income allocation at an amount sufficient to raise the community spouse’s total income up to an amount referred to as the minimum monthly maintenance needs allowance (MMMNA). Wis. Stat. §49.455(4)(b). The current MMMNA is $3,051.66. See MEH §§18.6.2 and 39.4.4. If a community spouse demonstrates that s/he has “excess shelter costs”, the agency may increase the allocation to a maximum of $3.715.50 Id.
An administrative law judge (ALJ) has discretion beyond that of the agency to increase the MMMNA; though the ALJ’s discretion to increase the MMMNA is not unfettered. Because any additional amount given to the community spouse is a taxpayer-financed subsidy in the form of medical assistance, the law restricts the administrative law judge’s ability to raise the limit. Wisconsin law provides the following test for the exception:
(c) If either spouse establishes at a fair hearing that, due to exceptional circumstances resulting in financial duress, the community spouse needs income above the level provided by the minimum monthly maintenance needs allowance determined under sub. (4)(c), the department shall determine an amount adequate to provide for the community spouse’s needs and use that amount in place of the minimum monthly maintenance needs allowance in determining the community spouse’s monthly income allowance under sub.(4)(b).
Wis. Stat. §49.455(8)(c) (emphasis added). The relevant administrative code provision, in turn, provides the following definition of the term “exceptional circumstances resulting in financial duress”: “situations that result in the community spouse not being able to provide for his or her own necessary and basic maintenance needs.” Wis. Admin. Code § DHS 103.075(8)(c).
The community spouse submitted a list of monthly expenses totaling $4,359.27. Exhibit P-1; and Finding of Fact 4. All but three of the proffered expenses were found to be necessary and basic maintenance needs. The expense for Netflix of $21.07 was not found to be a necessary and basic maintenance need as it was in addition to a cable expense that was already allowed. Also, two additional expenses were not allowed as the community spouse was not able to explain what they were for. Those were $108.38 for Mepco and $73.84 for an unidentified expense. The non-allowable expenses totaled $203.29, reducing the allowable monthly expenses to $4,155.98.
Petitioner’s December, 2022, income less a $45 personal needs allowance and $164.90 health insurance premium comes to $7,516.32. Because the community spouse has her own income of $1,484.90, she requires an additional $2,671.05 ($4,155.98 – $1,484.90) to cover her necessary and basic expenses. I will therefore remand this matter to the agency to increase the minimum monthly maintenance needs allowance to $4,155.98 and the community spouse income allocation to $2,671.05. Petitioner’s patient liability effective December 1, 2022, will accordingly be reduced.
Conclusions of Law
As of December 1, 2022, petitioner’s community spouse had $4,155.98 in basic and necessary monthly maintenance needs. Pursuant to Wis. Stat. §49.455(8)(c), she is therefore entitled to an increased minimum monthly maintenance needs allowance equal to that amount and an increased community spouse income allocation of $2,671.05.
THEREFORE, it is
That the matter be remanded to the agency with the following instructions: (1) effective December 1, 2022, use $4,155.98 as petitioner’s minimum monthly maintenance needs allowance; (2) Adjust the community spouse income allocation to $2,671.05; (3) Recalculate petitioner’s patient liability effective December 1, 2022, by using this increased community spouse income allocation figure, and (4) Issue a notice to petitioner’s representative with the adjusted figures. The agency shall comply with this order within 10 days of this decision.[Request for a rehearing and appeal to court instructions omitted.]