5101:1-39-36.1 Medicaid: resource budgeting methodology for institutionalized individuals with a spouse in the community.

(A) This rule outlines the resource budgeting methodology used to:

(1) Determine the amount of resources that may be transferred from the institutionalized spouse to the community spouse; and

(2) Protect a portion of the combined countable resources for the community spouse.

(B) Definitions.

(1) "Administrative agency" means the county department of job and family services, the Ohio department of job and family services, or other entity that determines eligibility for a medical assistance program.

(2) "Community spouse" describes an individual who is not in a medical institution or nursing facility and has an institutionalized spouse; however, when both spouses are requesting or receiving services under a home and community based services (HCBS) waiver program or program of all inclusive care for the elderly (PACE), neither spouse is considered to meet this definition.

(3) "Institutionalized spouse" describes an individual who receives long term care services in a medical institution, a long term care facility, under a HCBS waiver program, or under PACE for at least thirty consecutive days.

(4) "Spousal resource maximum" means the maximum amount of a couple's countable resources protected for the community spouse.

(5) "Spousal resource minimum" means the minimum amount of a couple's countable resources protected for the community spouse.

(6) "Undue hardship" is defined in rule 5101:1-39-07 of the Administrative Code.

(C) The JFS 04077 "Resource Transfer Worksheet" (rev. 10/2006) must be used to calculate the amount of resources that may be transferred from the institutionalized spouse to the community spouse.

(1) Determine the spousal share of the resources by dividing the total countable resources established the date of the first continuous period of institutionalization on the JFS 04076 "Resource Assessment Worksheet" (rev. 05/2001) by two.

(2) Determine the couple's current combined countable resources as of the date of application for medical assistance. This may differ from the amount established by the JFS 04076 (depending on whether the assessment was completed concurrently with the application for long-term care medical assistance).

(3) The community spouse resource allowance is the greatest of the following:

(a) The community spousal share or the community spousal resource maximum (in accordance with rule 5101:1-39-36 of the Administrative Code) whichever is less; or

(b) The spousal resource minimum (in accordance with rule 5101:1-39-36 of the Administrative Code); or

(c) The allocation of resources specified in a current court order or by a state hearing decision.

(4) Deduct the community spouse resource allowance (the amount determined in paragraph (C)(3) of this rule) from the couple's current combined countable resources. The remaining amount is the countable resources of the institutionalized spouse and is to be used only for the benefit of the institutionalized spouse and/or community spouse.

(a) If this remaining amount is equal to or less than the resource limit for one, (pursuant to Chapter 5101:1-39 of the Administrative Code), resource eligibility potentially exists and the transfer of resource provisions specified in Chapter 5101:1-39 of the Administrative Code are followed.

(i) To determine the amount of resources that must be transferred to the community spouse, deduct the individual medicaid resource limit from the amount of resources in the institutionalized spouse's name only and/or held jointly by both spouses.

(ii) The institutionalized spouse may then transfer up to the amount of the community spouse's resource allowance less the amount that is solely in the name of the community spouse.

(iii) The remaining assets are considered available to the institutionalized spouse.

(iv) These remaining resources must only be used for the benefit of the institutionalized spouse and/or community spouse.

(b) If the remaining amount is over the resource limit for one, resource eligibility does not exist at this time. The JFS 07332 "Notice of Denial of Your Application for Medicaid: In Cases Involving Community Spouses" (rev. 10/2006) or the appropriate electronic eligibility system notice must be issued.

(i) Resource eligibility will exist when the combined countable resources of the couple are reduced to the greatest of the following:

(a) The community spouse resource allowance plus individual resource limit for one; or

(b) A court ordered transfer (subsequent to the medicaid denial) plus the individual resource limit for one.

(ii) Resource eligibility will otherwise exist if the administrative agency determines that undue hardship exists. Reference rule 5101:1-39-07 of the Administrative Code for a determination of when an undue hardship exists.

(5) The resource budgeting computation can be revised if the administrative agency determines inaccurate information was provided or an error was made at any step in the resource budgeting computation.

(6) The community spouse resource allowance may be increased by an amount sufficient to generate additional income to the community spouse, if both of the following conditions are met:

(a) All available income of the institutionalized spouse has been allocated to the community spouse and the income of the institutionalized spouse is not adequate to raise the income of the community spouse to the established minimum monthly maintenance needs allowance; and

(b) A state hearing decision, in accordance with rule 5101:6-7-02 of the Administrative Code, has determined the original community spouse resource allowance, in relation to the amount of income it generates, is not adequate to raise the income of the community spouse to the established minimum monthly maintenance needs allowance.

(D) When the institutionalized spouse is determined to have resources in excess of the individual resource limit, the institutionalized individual is ineligible for medical assistance due to excess resources; however, the institutionalized spouse must be found eligible for medical assistance if all of the following conditions exist:

(1) The institutionalized spouse's own resources are at or below the individual resource limit; and

(2) The community spouse will not cooperate in making resources available to the institutionalized spouse after a resource assessment has been completed; and

(3) The institutionalized spouse, or other person standing in place of the institutionalized spouse, has assigned his or her rights to support from the community spouse to the state. If the institutionalized spouse lacks the ability to execute an assignment due to a physical or mental impairment, the state will bring a support proceeding against the community spouse as provided for in sections 5101.58 and 5101.59 of the Revised Code; and

(4) All other medicaid eligibility requirements have been met.

(E) Prior to the final decision to approve or deny medical assistance, the community spouse must be given notice of the responsibility to cooperate in making resources available to the institutionalized spouse and legal action may be taken against the community spouse for refusing to do so. If the community spouse refuses to cooperate, medical assistance must be approved, provided that all other eligibility factors and the conditions stated in paragraph (D) of this rule have been met. The administrative agency must refer the case to the state attorney general's office, who must attempt to recover funds from the community spouse for any medical payments paid by medicaid up to the institutionalized spouse's allocated share of the couple's assets. However, recovery cannot reduce the remaining resources of the community spouse below the community spouse resource allowance. That amount remains protected for the community spouse. Section 5101.58 of the Revised Code authorizes the administrative agency to pursue recovery of medicaid payments made on behalf of the institutionalized spouse.

(1) When it is determined an institutionalized spouse has resources in excess of the individual resource limit due to resources in the name of the community spouse, the administrative agency must send a notice to the community spouse and a copy sent to the institutionalized spouse advising the community spouse of the amount of resources that must be made available to the institutionalized spouse. A copy of the completed JFS 04076 and a copy of the JFS 04077 must accompany the notice. The community spouse must complete and return the notice within ten calendar days of the mailing date.

(2) If the community spouse returns the notice within ten calendar days of the mailing date with the block checked indicating the community spouse will cooperate, the administrative agency must deny the application due to excess resources of the institutionalized spouse.

(3) If the community spouse fails to return the notice or returns the notice indicating that he or she will not cooperate and the institutionalized spouse meets the requirements of paragraph (D) of this rule, the administrative agency must take the following actions:

(a) Medical assistance for the institutionalized spouse must be approved; and

(b) The JFS 07403 "Community Spouse Resource and Income Information Form" (rev. 03/1993) must be completed. This notice must be completed as soon as possible after the ten calendar days have passed. The administrative agency must attempt to document all pertinent information regarding the resources and income of the community spouse on this form. A copy of the JFS 07403 must be retained in the individual's record. The original JFS 07403 and copies of all pertinent documentation must be sent to the collections enforcement section of the office of the attorney general.

(c) If all other eligibility requirements are met, the institutionalized spouse must remain eligible for medical assistance while legal action proceeds.

(4) The administrative agency must apply the provisions set forth in this rule to institutionalized applicants who exceed the resource limit solely due to resources of the community spouse.

(F) In unusual circumstances a resource assessment cannot be completed due to the non-cooperation of the community spouse.

(1) When the community spouse refuses or fails to cooperate, the institutionalized spouse or other person standing in place of the institutionalized spouse must assign rights to support from the community spouse to the state. If the institutionalized spouse lacks the ability to execute an assignment, due to a physical or mental impairment, the state will bring a support proceeding against the community spouse in accordance with sections 5101.58 and 5101.59 of the Revised Code.

(2) If all other eligibility factors have been met, and the institutionalized spouse is cooperating in obtaining the necessary verifications from his or her spouse, the administrative agency must approve the institutionalized spouse for medical assistance until the verifications are obtained.

(3) Undue hardship does not exist when the institutionalized spouse has transferred assets to the community spouse and the community spouse refuses to cooperate in completing a resource assessment or making the resources available to the institutionalized spouse.

(G) The administrative agency must issue proper notice and hearing rights outlined in division 5101:6 of the Administrative Code.

Replaces: 5101:1-39- 36.1

Effective: 10/01/2006
R.C. 119.032 review dates: 10/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.01 , 5111.011
Rule Amplifies: 5111.01 , 5111.011
Prior Effective Dates: 1/1/90 (Emer.), 4/1/90, 6/1/90 (Emer.), 8/1/90, 10/1/90 (Emer.), 12/24/90, 1/1/91 (Emer.), 4/1/91, 1/1/92 (Emer.), 3/30/92, 2/12/93 (Emer.), 5/13/93, 9/1/94, 11/7/02, 07/01/03, 09/20/03