42 U.S.C. § 1396r–5 — Treatment of income and resources for certain institutionalized spouses

**(a) Special treatment for institutionalized spouses** (1) **Supersedes other provisions** — In determining the eligibility for medical assistance of an institutionalized spouse (as defined in subsection (h)(1)), the provisions of this section supersede any other provision of this subchapter (including sections 1396a(a)(17) and 1396a(f) of this title) which is inconsistent with them. (2) **No comparable treatment required** — Any different treatment provided under this section for institutionalized spouses shall not, by reason of paragraph (10) or (17) of [section 1396a(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396a/a&num=0&edition=prelim), require such treatment for other individuals. (3) **Does not affect certain determinations** — Except as this section specifically provides, this section does not apply to— (A) the determination of what constitutes income or resources, or (B) the methodology and standards for determining and evaluating income and resources. (4) **Application in certain States and territories** (A) *Application in States operating under demonstration projects* — In the case of any State which is providing medical assistance to its residents under a waiver granted under [section 1315 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1315&num=0&edition=prelim), the Secretary shall require the State to meet the requirements of this section in the same manner as the State would be required to meet such requirement if the State had in effect a plan approved under this subchapter. (B) *No application in commonwealths and territories* — This section shall only apply to a State that is one of the 50 States or the District of Columbia. (5) **Application to individuals receiving services under PACE programs** — This section applies to individuals receiving institutional or noninstitutional services under a PACE demonstration waiver program (as defined in [section 1396u–4(a)(7) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396u–4/a/7&num=0&edition=prelim)) or under a PACE program under section 1396u–4 or 1395eee of this title. **(b) Rules for treatment of income** (1) **Separate treatment of income** — During any month in which an institutionalized spouse is in the institution, except as provided in paragraph (2), no income of the community spouse shall be deemed available to the institutionalized spouse. (2) **Attribution of income** — In determining the income of an institutionalized spouse or community spouse for purposes of the post-eligibility income determination described in subsection (d), except as otherwise provided in this section and regardless of any State laws relating to community property or the division of marital property, the following rules apply: (A) *Non-trust property* — Subject to subparagraphs (C) and (D), in the case of income not from a trust, unless the instrument providing the income otherwise specifically provides— (i) if payment of income is made solely in the name of the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse; (ii) if payment of income is made in the names of the institutionalized spouse and the community spouse, one-half of the income shall be considered available to each of them; and (iii) if payment of income is made in the names of the institutionalized spouse or the community spouse, or both, and to another person or persons, the income shall be considered available to each spouse in proportion to the spouse’s interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse). (B) *Trust property* — In the case of a trust— (i) except as provided in clause (ii), income shall be attributed in accordance with the provisions of this subchapter (including sections 1396a(a)(17) and 1396p(d) of this title), and (ii) income shall be considered available to each spouse as provided in the trust, or, in the absence of a specific provision in the trust— (I) if payment of income is made solely to the institutionalized spouse or the community spouse, the income shall be considered available only to that respective spouse; (II) if payment of income is made to both the institutionalized spouse and the community spouse, one-half of the income shall be considered available to each of them; and (III) if payment of income is made to the institutionalized spouse or the community spouse, or both, and to another person or persons, the income shall be considered available to each spouse in proportion to the spouse’s interest (or, if payment is made with respect to both spouses and no such interest is specified, one-half of the joint interest shall be considered available to each spouse). (C) *Property with no instrument* — In the case of income not from a trust in which there is no instrument establishing ownership, subject to subparagraph (D), one-half of the income shall be considered to be available to the institutionalized spouse and one-half to the community spouse. (D) *Rebutting ownership* — The rules of subparagraphs (A) and (C) are superseded to the extent that an institutionalized spouse can establish, by a preponderance of the evidence, that the ownership interests in income are other than as provided under such subparagraphs. **(c) Rules for treatment of resources** (1) **Computation of spousal share at time of institutionalization** (A) *Total joint resources* — There shall be computed (as of the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse)— (i) the total value of the resources to the extent either the institutionalized spouse or the community spouse has an ownership interest, and (ii) a spousal share which is equal to ½ of such total value. (B) *Assessment* — At the request of an institutionalized spouse or community spouse, at the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse and upon the receipt of relevant documentation of resources, the State shall promptly assess and document the total value described in subparagraph (A)(i) and shall provide a copy of such assessment and documentation to each spouse and shall retain a copy of the assessment for use under this section. If the request is not part of an application for medical assistance under this subchapter, the State may, at its option as a condition of providing the assessment, require payment of a fee not exceeding the reasonable expenses of providing and documenting the assessment. At the time of providing the copy of the assessment, the State shall include a notice indicating that the spouse will have a right to a fair hearing under subsection (e)(2). (2) **Attribution of resources at time of initial eligibility determination** — In determining the resources of an institutionalized spouse at the time of application for benefits under this subchapter, regardless of any State laws relating to community property or the division of marital property— (A) except as provided in subparagraph (B), all the resources held by either the institutionalized spouse, community spouse, or both, shall be considered to be available to the institutionalized spouse, and (B) resources shall be considered to be available to an institutionalized spouse, but only to the extent that the amount of such resources exceeds the amount computed under subsection (f)(2)(A) (as of the time of application for benefits). (3) **Assignment of support rights** — The institutionalized spouse shall not be ineligible by reason of resources determined under paragraph (2) to be available for the cost of care where— (A) the institutionalized spouse has assigned to the State any rights to support from the community spouse; (B) the institutionalized spouse lacks the ability to execute an assignment due to physical or mental impairment but the State has the right to bring a support proceeding against a community spouse without such assignment; or (C) the State determines that denial of eligibility would work an undue hardship. (4) **Separate treatment of resources after eligibility for benefits established** — 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 benefits under this subchapter, no resources of the community spouse shall be deemed available to the institutionalized spouse. (5) **Resources defined** — In this section, the term “resources” does not include— (A) resources excluded under subsection (a) or (d) of [section 1382b of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1382b&num=0&edition=prelim), and (B) resources that would be excluded under [section 1382b(a)(2)(A) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1382b/a/2/A&num=0&edition=prelim) but for the limitation on total value described in such section. **(d) Protecting income for community spouse** (1) **Allowances to be offset from income of institutionalized spouse** — After an institutionalized spouse is determined or redetermined to be eligible for medical assistance, 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: (A) A personal needs allowance (described in [section 1396a(q)(1) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396a/q/1&num=0&edition=prelim)), in an amount not less than the amount specified in [section 1396a(q)(2) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396a/q/2&num=0&edition=prelim). (B) A community spouse monthly income allowance (as defined in paragraph (2)), but only to the extent income of the institutionalized spouse is made available to (or for the benefit of) the community spouse. (C) A family allowance, for each family member, equal to at least ⅓ of the amount by which the amount described in paragraph (3)(A)(i) exceeds the amount of the monthly income of that family member. (D) Amounts for incurred expenses for medical or remedial care for the institutionalized spouse (as provided under [section 1396a(r) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396a/r&num=0&edition=prelim)). In subparagraph (C), the term “family member” only includes minor or dependent children, dependent parents, or dependent siblings of the institutionalized or community spouse who are residing with the community spouse. (2) **Community spouse monthly income allowance defined** — In this section (except as provided in paragraph (5)), the “community spouse monthly income allowance” for a community spouse is an amount by which— (A) except as provided in subsection (e), the minimum monthly maintenance needs allowance (established under and in accordance with paragraph (3)) for the spouse, exceeds (B) the amount of monthly income otherwise available to the community spouse (determined without regard to such an allowance). (3) **Establishment of minimum monthly maintenance needs allowance** (A) *In general* — Each State shall establish a minimum monthly maintenance needs allowance for each community spouse which, subject to subparagraph (C), is equal to or exceeds— (i) the applicable percent (described in subparagraph (B)) of 1⁄12 of the income official poverty line (defined by the Office of Management and Budget and revised annually in accordance with [section 9902(2) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section9902/2&num=0&edition=prelim)) for a family unit of 2 members; plus (ii) an excess shelter allowance (as defined in paragraph (4)). A revision of the official poverty line referred to in clause (i) shall apply to medical assistance furnished during and after the second calendar quarter that begins after the date of publication of the revision. (B) *Applicable percent* — For purposes of subparagraph (A)(i), the “applicable percent” described in this paragraph, effective as of— (i) September 30, 1989, is 122 percent, (ii) July 1, 1991, is 133 percent, and (iii) July 1, 1992, is 150 percent. (C) *Cap on minimum monthly maintenance needs allowance* — The minimum monthly maintenance needs allowance established under subparagraph (A) may not exceed $1,500 (subject to adjustment under subsections (e) and (g)). (4) **Excess shelter allowance defined** — In paragraph (3)(A)(ii), the term “excess shelter allowance” means, for a community spouse, the amount by which the sum of— (A) the spouse’s expenses for rent or mortgage payment (including principal and interest), taxes and insurance and, in the case of a condominium or cooperative, required maintenance charge, for the community spouse’s principal residence, and (B) the standard utility allowance (used by the State under [section 2014(e) of title 7](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title7-section2014/e&num=0&edition=prelim)) or, if the State does not use such an allowance, the spouse’s actual utility expenses, exceeds 30 percent of the amount described in paragraph (3)(A)(i), except that, in the case of a condominium or cooperative, for which a maintenance charge is included under subparagraph (A), any allowance under subparagraph (B) shall be reduced to the extent the maintenance charge includes utility expenses. (5) **Court ordered support** — If a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall be not less than the amount of the monthly income so ordered. (6) **Application of “income first” rule to revision of community spouse resource allowance** — For purposes of this subsection and subsections (c) and (e), a State must consider that all income of the institutionalized spouse that could be made available to a community spouse, in accordance with the calculation of the community spouse monthly income allowance under this subsection, has been made available before the State allocates to the community spouse an amount of resources adequate to provide the difference between the minimum monthly maintenance needs allowance and all income available to the community spouse. **(e) Notice and fair hearing** (1) **Notice** — Upon— (A) a determination of eligibility for medical assistance of an institutionalized spouse, or (B) a request by either the institutionalized spouse, or the community spouse, or a representative acting on behalf of either spouse, each State shall notify both spouses (in the case described in subparagraph (A)) or the spouse making the request (in the case described in subparagraph (B)) of the amount of the community spouse monthly income allowance (described in subsection (d)(1)(B)), of the amount of any family allowances (described in subsection (d)(1)(C)), of the method for computing the amount of the community spouse resources allowance permitted under subsection (f), and of the spouse’s right to a fair hearing under this subsection respecting ownership or availability of income or resources, and the determination of the community spouse monthly income or resource allowance. (2) **Fair hearing** (A) *In general* — If either the institutionalized spouse or the community spouse is dissatisfied with a determination of— (i) the community spouse monthly income allowance; (ii) the amount of monthly income otherwise available to the community spouse (as applied under subsection (d)(2)(B)); (iii) the computation of the spousal share of resources under subsection (c)(1); (iv) the attribution of resources under subsection (c)(2); or (v) the determination of the community spouse resource allowance (as defined in subsection (f)(2)); such spouse is entitled to a fair hearing described in [section 1396a(a)(3) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396a/a/3&num=0&edition=prelim) with respect to such determination if an application for benefits under this subchapter has been made on behalf of the institutionalized spouse. Any such hearing respecting the determination of the community spouse resource allowance shall be held within 30 days of the date of the request for the hearing. (B) *Revision of minimum monthly maintenance needs allowance* — If either such spouse establishes that the community spouse needs income, above the level otherwise provided by the minimum monthly maintenance needs allowance, due to exceptional circumstances resulting in significant financial duress, there shall be substituted, for the minimum monthly maintenance needs allowance in subsection (d)(2)(A), an amount adequate to provide such additional income as is necessary. (C) *Revision of community spouse resource allowance* — If either such spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse’s income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance under subsection (f)(2), an amount adequate to provide such a minimum monthly maintenance needs allowance. **(f) Permitting transfer of resources to community spouse** (1) **In general** — An institutionalized spouse may, without regard to [section 1396p(c)(1) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396p/c/1&num=0&edition=prelim), transfer an amount equal to the community spouse resource allowance (as defined in paragraph (2)), but only to the extent the resources of the institutionalized spouse are transferred to (or for the sole benefit of) the community spouse. The transfer under the preceding sentence shall be made as soon as practicable after the date of the initial determination of eligibility, taking into account such time as may be necessary to obtain a court order under paragraph (3). (2) **Community spouse resource allowance defined** — In paragraph (1), the “community spouse resource allowance” for a community spouse is an amount (if any) by which— (A) the greatest of— (i) $12,000 (subject to adjustment under subsection (g)), or, if greater (but not to exceed the amount specified in clause (ii)(II)) an amount specified under the State plan, (ii) the lesser of (I) the spousal share computed under subsection (c)(1), or (II) $60,000 (subject to adjustment under subsection (g)), (iii) the amount established under subsection (e)(2); or (iv) the amount transferred under a court order under paragraph (3); exceeds (B) the amount of the resources otherwise available to the community spouse (determined without regard to such an allowance). (3) **Transfers under court orders** — If a court has entered an order against an institutionalized spouse for the support of the community spouse, [section 1396p of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396p&num=0&edition=prelim) shall not apply to amounts of resources transferred pursuant to such order for the support of the spouse or a family member (as defined in subsection (d)(1)). **(g) Indexing dollar amounts** For services furnished during a calendar year after 1989, the dollar amounts specified in subsections (d)(3)(C), (f)(2)(A)(i), and (f)(2)(A)(ii)(II) shall be increased by the same percentage as the percentage increase in the consumer price index for all urban consumers (all items; U.S. city average) between September 1988 and the September before the calendar year involved. **(h) Definitions** In this section: (1) The term “institutionalized spouse” means an individual who— (A) is in a medical institution or nursing facility or who (at the option of the State) is described in [section 1396a(a)(10)(A)(ii)(VI) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1396a/a/10/A/ii/VI&num=0&edition=prelim), and (B) is married to a spouse who is not in a medical institution or nursing facility; but does not include any such individual who is not likely to meet the requirements of subparagraph (A) for at least 30 consecutive days. (2) The term “community spouse” means the spouse of an institutionalized spouse.