The Medicaid Eligibility Handbook defines a “community spouse” as someone who is both married to an institutionalized person and not living in a medical institution for 30 or more days. In this case, the petitioner resided in a nursing home and received Institutional MA while his wife lived at home and received Community Waivers services. The county determined that spousal impoverishment rules did not apply because the wife was defined as an “institutionalized person” under the MA rules. ALJ Brian Schneider, however, carefully examined the definition “institutionalized spouse” in Wisconsin and Federal law and concluded spousal impoverishment rules did apply in this case.
Compare this case with MRA 20/20606, decided the same day by ALJ Schneider, where spousal impoverishment rules did not apply because both spouses resided in a nursing home.
This decision was published with support from the Wisconsin chapter of the National Academy of Elder Law Attorneys. Thanks also to Attorney Andy Falkowski, who donated this decision from his file.
Preliminary Recitals
Pursuant to a petition filed February 18, 1998 under §49.45(5), Wis. Stats., to review a decision by the Winnebago County Dept. of Social Services regarding Medical Assistance (MA), a hearing was held on March 11, 1998 at Oshkosh, Wisconsin.
The issue for determination is whether petitioner’s spouse is a “community spouse” under Spousal Impoverishment rules although she is an MA Waiver recipient.
There appeared at that time and place the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
David Fendt, Benefit Specialist
Winnebago County DSS
P.O. Box 2646
Oshkosh, WI 54903-2646
Wisconsin Dept. of Health and Family Services
Bureau of Health Care Financing
1 West Wilson Street, Room 230
P.O. Box 309
Madison, WI 53701-0309
By: Barb Luchinski, ESS
Winnebago County Dept. of Social Services
P.O. Box 2646
Oshkosh, WI 54903-2646
EXAMINER:
Brian C. Schneider, Attorney
Division of Hearings and Appeals
Findings of Fact
- Petitioner (SSN —, CARES —) is a resident of Winnebago County.
- Until December, 1997, petitioner and his wife — both resided in the community and received MA under an MA Waiver program. Petitioner entered a nursing home on December 31, 1997.
- The county thereafter redetermined MA eligibility. It found that petitioner had a cost of care liability in the nursing home, and that only $142.67 of his income could be used by [petitioner’s wife] for upkeep of the couple’s home.
- Petitioner’s income is $522 per month social security. The county deducted a $40 personal needs allowance and the $142.67 home maintenance allowance to conclude that petitioner’s monthly cost of care was $339.33. [Petitioner’s wife’s] income is $284 social security. Although she is considered to be institutionalized as an MA waiver recipient, her monthly expenses are approximately $650.
Discussion
Because MA waiver recipients have more liberal deductions from income in determining eligibility, petitioner and his wife were able to keep all of their income and still be eligible when both were waiver recipients. When petitioner entered the nursing home, the county attributed his income solely to him and —’s income solely to her. With fewer deductions for a person in a nursing home, suddenly the income available to [petitioner’s wife] decreased, and she testified that she cannot afford to stay in the home with only $426 income each month.
The primary issue in this case is whether [petitioner’s wife] may be considered a “community spouse” under Spousal Impoverishment rules although she is considered “institutionalized” under MA waiver rules. The answer is important because if she is a community spouse, petitioner’s entire income can be allocated to her to allow her to remain in the home. See the MA Handbook, Appendix 23.6.0. According to Department policy described in the Handbook, she cannot be a community spouse for Spousal Impoverishment purposes. The Handbook, at App. 23.2.1, defines “community spouse” as a person married to an institutionalized person and not an institutionalized person herself. An “institutionalized person” is someone who is in a nursing home or participates in community waivers. Id., App. 23.2.3. Therefore, since — is considered institutionalized, she cannot be a community spouse. She thus is not entitled to Spousal Impoverishment benefits.
Both the Wisconsin Statute and the United States Code read differently, with a distinction that must be read closely. Sec. 49.455(1)(d), Wis. Stats., reads as follows:
“Institutionalized spouse” means either an individual who is in a medical institution or nursing facility and is married to an individual who is not in a medical institution or nursing facility or an individual who receives services under a waiver under 42 U.S.C. § 1396n (c) or (d) and is married to an individual who is not in a medical institution or nursing facility and does not receive services under a waiver under 42 U.S.C. § 1396n (c) or (d).
Read carefully, the statute describes two identifying characteristics for an individual to be considered an institutionalized spouse for Spousal Impoverishment purposes, either (1) an individual who is in an institution and who is married to an individual who is not in an institution, or (2) an individual who receives MA waiver services and who is married to an individual who is not in an institution and does not receive MA waiver services.
— is not an institutionalized spouse under that two-part definition. Under the second part of the definition, she receives waiver services and her spouse is in a nursing facility. Petitioner, on the other hand, falls under the first part of the definition. He is in a nursing facility, and his spouse is not in an institution or nursing facility. — would meet the definition of “community spouse” under sec. 49.455(1)(a), as she is an individual married to an institutionalized spouse.
The federal statute reads similarly to the state statute. 42 U.S.C. 1396r-5(h)(1) defines “institutionalized spouse” as an individual who is in a medical institution or nursing facility, or who is described in section 1396a(a)(10)(A)(ii)(VI) [the MA waiver section], and who is married to a spouse who is not in an institution or nursing facility. Again, — does not meet that definition because she is a waiver participant married to a person in a nursing facility, but petitioner meets it because his spouse is not in a medical institution or nursing facility.
Most importantly, this same issue was decided almost six years ago. In Final Decision No. MRA-17/71495, dated September 4, 1992, the Department’s Deputy Secretary adopted a proposed decision which concluded that when a man was in a nursing facility, his wife could be considered a community spouse even though she was an MA waiver recipient. The hearing examiner in that case analyzed the Wisconsin Statute in the same way as I interpret it. Unfortunately, the Department did not change its MA Handbook after that decision was made.
I conclude that petitioner is an “institutionalized spouse” as defined for Spousal Impoverishment purposes under sec. 49.455, Wis. Stats., and that his wife is a community spouse for the same purposes. The matter will be remanded to the county with instructions to recalculate petitioner’s cost of care liability under Spousal Impoverishment rules.
Conclusions of Law
Because petitioner resides in a nursing facility, and his wife does not, the couple falls within the scope of Spousal Impoverishment, despite her receipt of MA waiver services.
THEREFORE, it is
Ordered
That the matter be remanded to the county with instructions to redetermine petitioner’s cost of care liability under the Spousal Impoverishment policy.
[Request for a rehearing and appeal to court instructions omitted.]
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