Federal law defines “institutionalized spouse” as someone who is either: (a) in a medical institution and whose spouse is not in a medical institution, or (b) receiving Community Waivers services and whose spouse is not in a medical institution and not receiving Community Waivers services. 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 Medicaid Eligibility Handbook. ALJ Michael O’Brien, however, concluded spousal impoverishment rules did apply in this case.
This decision was published with support from 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 October 28, 1999, under Wis. Stat. § 49,45(5), to review a decision by the Chippewa County Dept. of Social Services in regard to Medical Assistance (MA), a hearing was held on November 18, 1999, at Chippewa Falls, Wisconsin.
The issue for determination is whether the petitioner may allocate his income to his wife under the spousal impoverishment rules.
There appeared at that time and place the following persons:
PARTIES IN INTEREST:
Petitioner:
—
c/o Attorney Molly Bandt
Coalition of Wisconsin Aging Groups
5900 Monona Drive Suite 400
Madison, WI 53716-3554
Wisconsin Department of Health and Family Services
Division of Health Care Financing
1 West Wilson Street, Room 250
P.O. Box 309
Madison, WI 53707-0309
By: Cindy Tadayon
Chippewa County Dept Of Social Services
Economic Support Room 119
711 North Bridge St
Chippewa Falls WI 54729
EXAMINER:
Michael D. O’Brien, Attorney
Division of Hearings and Appeals
Findings of Fact
- The petitioner (SSN —, CARES —) is a resident of Chippewa County.
- The petitioner and his wife both formerly resided in the community. Mr. — then entered the nursing home on September 14, 1999. His wife became eligible for COP-Waiver benefits on July 28, 1999.
- The county agency computed a “cost of care” liability for the petitioner of $643 per month. This was derived by subtracting $40 from his $683 social security check, which is his entire monthly income.
- The wife’s monthly income is $338.
Discussion
The petitioner is institutionalized and his wife receives medical assistance under the COP-Waiver portion of the program. The county agency denied the wife’s request that she be allocated the petitioner’s income because those receiving aid under COP-Waiver are considered institutionalized by the medical assistance program. The issue is whether she may be considered a “community spouse” under spousal impoverishment rules even though she is considered “institutionalized” under waiver rules. If she is a community spouse, the petitioner’s entire income can be allocated to her to allow her to remain in the home. MA Handbook, Appendix 23.6.0.
The basis fot the county’s position is a policy in the MA Handbook. Appendix §23.2.1 that 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., 23.2.3. Since the wife is considered institutionalized, she cannot be a community spouse, and is therefore not entitled to spousal impoverishment benefits.
However, the Handbook conflicts with the relevant state and federal statutes. Specifically, Wis. Stat. §49.455(1)(d), declares:
“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).
This statute describes the two alternative standards which must be met for a person to be treated as an institutionalized spouse for spousal impoverishment purposes: (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.
The wife is not an institutionalized spouse under this statutory definition. She does not fit the first definition because she is not in an institution. She does not fit under the second definition because she is not married to a person who is not in an institution or receiving MA Waiver services.
The parallel federal statute, 42 U.S.C. 1396r-5(h)(I), defines “institutionalized spouse” as a person in a medical institution or nursing facility, or who is described in section 139.6a(a)(10)(A)(ii)(VI) [the Waiver section] and is married to a spouse who is not in an institution or nursing facility. As explained in the paragraph above, the wife does not fit this “institutionalized spouse” definition.
Finally, this issue has been decided in previous hearing decisions (including a Proposed/Final Decision from the Department Secretary), with the same result reached here. E.g., DHA Case No. MRA-70/21384 (Wis. Div. Hearings & Appeals March 30, 1998, by Examiner Schneider); Department Decision No. MRA-17/71495 (Office of Adm. Hearings September 5, 1992). Based on the foregoing, I conclude that the agency must treat the wife as a community spouse for purposes of application of spousal impoverishment rules.
Conclusions of Law
Because the petitioner resides in a nursing facility, and his wife does not, spousal impoverishment rules apply to their MA case; this allows the wife to be treated as a community spouse in spite of her receipt of MA Waiver services.
THEREFORE, it is
Ordered
That this matter be remanded to the county agency with instructions to allocate the petitioner’s income to his wife under the spousal impoverishment provisions. This action shall be taken within 10 days of the date of this Decision.
[Request for a rehearing and appeal to court instructions omitted.]
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