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Revision 10-3; Effective September 1, 2010
The following rules are taken from Subchapter C, Financial Requirements, Division 5, Spousal Impoverishment.
§358.411. Purpose and Application.
(a) This division establishes the criteria under which income and resources are protected for a community spouse, in accordance with 42 U.S.C. §1396r-5.
(b) This division applies to an institutionalized spouse whose continuous period in an institutional setting begins on or after September 30, 1989. For this division only, a reference to an institutional setting includes the receipt of services under the Program of All-Inclusive Care for the Elderly (PACE).
(c) This division applies to a person who is in an institutional setting and has a community spouse. It is not necessary for the community spouse to meet citizenship and residency requirements.
(d) This division does not apply to a couple with a void or annulled marriage.
(e) In the case of a divorce, the provisions of this division apply through the end of the calendar month of the court order granting the divorce.
§358.412. Definitions.
In this division, the following words and terms have the following meanings, unless the context clearly indicates otherwise.
(1) Community spouse—The spouse of an institutionalized spouse who is not living in a setting that provides medical care and services.
(2) Dependent family member—A minor or dependent child, dependent parent, or dependent sibling of an institutionalized spouse or a community spouse who resides with the community spouse. [Note: A dependent family member can be either spouse's minor or dependent children, dependent parents and dependent siblings (including half brothers, half sisters and siblings gained through adoption) who were living in an institutionalized client's home before the client's institutionalization, and who are unable to support themselves outside the client's home because of medical, social or other reasons.]
(3) Institutional setting—In this division only, a living arrangement in which a person applying for or receiving Medicaid:
(A) lives in a Medicaid-certified long-term care facility;
(B) receives services under a §1915(c) waiver program; or
(C) receives services under the Program of All-Inclusive Care for the Elderly (PACE).
(4) Institutionalized spouse—A person who:
(A) receives care in an institutional setting;
(B) has met or is likely to meet the criterion in subparagraph (A) of this paragraph for at least 30 consecutive days; and
(C) is married to a spouse who does not meet the criterion in subparagraph (A) of this paragraph.
(5) Spousal protected resource amount (SPRA)—That portion of a couple's combined countable resources reserved for the community spouse and deducted from the couple's combined countable resources in determining eligibility.
§358.413. Spousal Impoverishment Treatment of Income and Resources.
The Texas Health and Human Services Commission follows §1924 of the Social Security Act (42 U.S.C. §1396r-5), regarding the treatment of income and resources for certain institutionalized spouses in institutional settings.
§358.414. Assessment of Resources to Determine a Spousal Protected Resource Amount.
(a) Assessment. Upon request of either the institutionalized spouse or the community spouse, or either spouse's authorized representative, the Texas Health and Human Services Commission (HHSC) assesses the couple's resources to determine the spousal protected resource amount (SPRA). The request and assessment may be made any time from the beginning of the continuous period in an institutional setting to the date of application for Medicaid.
(b) Assessment request. If the request described in subsection (a) of this section is not part of an application for Medicaid, the couple must provide information on their resources and verification as required by HHSC. If the couple does not provide the verification within the time frame requested by HHSC, HHSC does not complete the assessment and takes no further action.
(c) Assessment date. HHSC assesses the couple's combined countable resources as of 12:01 a.m. on the first day of the month in which the first continuous period in an institutional setting began. When determining the first day of the month in an institutional setting for the SPRA, HHSC may count days the person spent in a hospital if the person admits directly from the hospital to an institutional setting. After the continuous period begins, hospital stays and therapeutic home visits are not considered as breaks in the 30-consecutive-day period.
§358.415. Calculation of the Spousal Protected Resource Amount.
(a) The Texas Health and Human Services Commission (HHSC) calculates the spousal protected resource amount (SPRA) as of the assessment date described in §358.414(c) of this division (relating to Assessment of Resources to Determine a Spousal Protected Resource Amount).
(b) When determining the SPRA, HHSC excludes the following resources regardless of value:
(1) one automobile; and
(2) a home, if:
(A) the community spouse or dependent family member continues to live in the home while the person is in the institutional setting;
(B) the community spouse lives in another state on out-of-state property, whether or not the institutionalized spouse has ownership interest; or
(C) the community spouse had been living in the out-of-state property as a home but is not residing there during the assessment and initial eligibility period and the community spouse signs a statement of intent to return to the home.
(c) The SPRA is the greater of:
(1) one-half of the couple's combined countable resources, not to exceed the maximum resource amount set by federal law; or
(2) the minimum resource amount set by federal law.
(d) HHSC calculates the SPRA as described in this section whether the SPRA is calculated at the time of application for Medicaid or before an application for Medicaid is filed. After HHSC determines the SPRA, the SPRA does not change unless:
(1) the SPRA was based on incomplete or inaccurate information, as described in §358.416(f)(1) of this division (relating to Initial Application and the Spousal Protected Resource Amount); or
(2) the SPRA is expanded as described in §358.420 of this division (relating to Expanding the Spousal Protected Resource Amount).
(e) The couple may not appeal the SPRA at the time of the assessment. The couple may appeal the SPRA after an application for Medicaid is filed.
§358.416. Initial Application and the Spousal Protected Resource Amount.
(a) Upon receiving an application for Medicaid, the Texas Health and Human Services Commission (HHSC) calculates the couple's combined countable resources, without regard to community or separate property laws or the spouses' respective ownership interests, as of 12:01 a.m. on the first day of the month in which eligibility is being determined. HHSC follows the resource exclusions for an automobile and a home, regardless of value, as described in §358.415 of this division (relating to Calculation of the Spousal Protected Resource Amount).
(b) If an assessment of resources to determine the spousal protected resource amount (SPRA) has not previously been completed, HHSC determines the SPRA at initial application, in accordance with §358.415 of this division.
(c) HHSC deducts the SPRA from the couple's combined countable resources calculated in subsection (a) of this section. HHSC follows §1924(a)(3) and §1924(c)(2) of the Social Security Act (42 U.S.C. §1396r-5(a)(3) and 42 U.S.C. §1396r-5(c)(2)) when determining resource eligibility of the institutionalized spouse at the initial eligibility determination.
(d) If the SPRA determined at assessment is either the federal minimum or maximum resource amount, and the federal minimum or maximum resource amount increases before completion of the initial application for Medicaid, HHSC uses the federal minimum and maximum resource amounts in effect at the time of completion of the initial application.
(e) If the institutionalized spouse is found ineligible for Medicaid at the initial application and reapplies, HHSC deducts the same SPRA for subsequent applications.
(f) If an institutionalized spouse, after having been certified, is subsequently denied and reapplies for Medicaid:
(1) if the institutionalized spouse should never have been certified and was denied because of unreported resources, HHSC calculates a new SPRA at reapplication, taking into account the previously unreported resources; and
(2) if the institutionalized spouse was denied for any other reason, HHSC does not deduct the SPRA and counts only the institutionalized spouse's resources at reapplication.
(g) After eligibility is established for the institutionalized spouse, HHSC follows §1924(c)(4) of the Social Security Act (42 U.S.C. §1396r-5(c)(4)) in the separate treatment of resources.
§358.417. Treatment of Resources of the Institutionalized Spouse after the Initial Eligibility Period.
After the initial eligibility period of the institutionalized spouse, the Texas Health and Human Services Commission does not apply the spousal protected resource amount and counts only the institutionalized spouse's resources for the purpose of eligibility redetermination, in accordance with Division 2 of this subchapter (relating to Resources).
§358.418. Refusal of a Community Spouse to Cooperate.
(a) If a community spouse refuses to cooperate in providing information to establish a spousal protected resource amount (SPRA) during an assessment as described in §358.414(b) of this division (relating to Assessment of Resources to Determine a Spousal Protected Resource Amount), the Texas Health and Human Services Commission (HHSC) does not complete the assessment and takes no further action.
(b) If an assessment is undertaken in conjunction with an eligibility determination at the initial application, and a community spouse refuses to furnish information, HHSC determines the living arrangement before the continuous period in an institutional setting began.
(1) If the couple was living in the same household, HHSC denies the application based on the couple's failure to furnish information. Living in the same household includes temporary separations.
(2) If the couple was not living in the same household, HHSC determines the purpose of separation, the length of separation, and resources or income commingled or managed jointly by one spouse or a third party.
(c) If the community spouse refuses to cooperate in providing information, and circumstances indicate possible abuse or neglect by the community spouse, HHSC considers the institutionalized spouse as an individual for purposes of determining eligibility and calculating the co-payment.
§358.419. Separation to Circumvent Medicaid Policy.
(a) The Texas Health and Human Services Commission (HHSC) evaluates the information provided by a couple to determine if a couple separated before the continuous period in an institutional setting began to avoid the pooling of resources under Medicaid spousal impoverishment provisions, if:
(1) the separation occurred after a change in the health of the institutionalized spouse;
(2) the community spouse potentially owns separate resources; or
(3) the ownership of commingled resources was changed recently.
(b) A couple has the right to rebut HHSC's determination that a separation occurred to circumvent Medicaid policy. To rebut HHSC's determination, either spouse or either spouse's authorized representative must provide a written statement or evidence to HHSC to substantiate the separation as directed on the written notification of HHSC's determination that a separation occurred to circumvent Medicaid policy.
(c) If HHSC determines that circumstances indicate there was no intent to circumvent Medicaid policy, HHSC treats the institutionalized spouse as an individual for purposes of determining Medicaid eligibility and calculating the co-payment.
§358.420. Expanding the Spousal Protected Resource Amount.
(a) This section applies to an institutionalized spouse whose continuous period in an institutional setting begins on or after September 1, 2004.
(b) An institutionalized spouse may request that HHSC expand the spousal protected resource amount (SPRA) to produce additional income for the community spouse. To determine whether to expand the SPRA, HHSC considers the countable amount of non-resource-produced and non-investment income of the community spouse and compares the countable amount of non-resource-produced and non-investment income to the minimum monthly maintenance needs allowance (MMMNA). The MMMNA is the minimum income level for a community spouse set by the Centers for Medicare and Medicaid Services.
(1) If the community spouse's countable non-resource-produced and non-investment income is less than the MMMNA, HHSC considers the available income (countable non-resource-produced income minus the personal needs allowance) of the institutionalized spouse and adds the institutional spouse's available income to the community spouse's countable non-resource-produced and non-investment income and compares the combined incomes to the MMMNA.
(2) If the total amount of the community spouse's own income plus the amount of available income diverted from the institutionalized spouse is equal to or greater than the MMMNA, then HHSC does not expand the SPRA.
(3) If the total amount of the community spouse's own income plus the amount of available income diverted from the institutionalized spouse is less than the MMMNA, then HHSC determines an expanded SPRA as described in subsections (c) - (e) of this section.
(c) If, after the diversion of the institutionalized spouse's available income, the community spouse's total income is less than the MMMNA, the couple can protect an amount of resources equal to the dollar amount that must be deposited in a one-year certificate of deposit (CD), at current interest rates, to produce interest income equal to the difference between the MMMNA in effect at the time of the request and other countable income not generated by either spouse's countable resources. The couple is not required to invest in the CD as a condition of eligibility.
(d) To determine the amount of the expanded SPRA, HHSC determines the current interest rate of a one-year CD as published in the local newspaper or provided by a local bank. HHSC then determines the amount of resources required to produce income, at the specified interest rate, that would increase the community spouse's income to the MMMNA.
(e) The amount of resources to be protected is determined by using the methodology described in paragraphs (1) - (4) of this subsection. This methodology is to be used to determine the maximum amount of resources to be protected regardless of the actual income the couple's resource may or may not be producing.
(1) Subtract from the amount of the MMMNA the community spouse's monthly income from all sources other than resources of the couple (including any income that must first be diverted by the institutionalized spouse as required by subsection (b) of this section). The result is the additional monthly income needed by the community spouse.
(2) Multiply by 12 the additional monthly income needed by the community spouse (from paragraph (1) of this subsection). The product equals the annual income needed by the community spouse.
(3) Divide the product from paragraph (2) of this subsection by the interest rate described in subsection (d) of this section. The result is the expanded SPRA, subject to paragraph (4) of this subsection.
(4) The expanded SPRA must not exceed the value of the couple's combined countable resources as of the first month of the continuous period in an institutional setting.
§358.421. Treatment of Income for Eligibility and Co-payment.
(a) To be eligible for Medicaid, an institutionalized spouse must have countable income that does not exceed the special income limit for an individual and meet all other eligibility criteria.
(b) In determining the income of an institutionalized spouse or community spouse for purposes of determining a co-payment, the Texas Health and Human Services Commission follows §1924(b)(2) and (d) of the Social Security Act (42 U.S.C. §1396r-5(b)(2) and (d)). See also Division 6 of this subchapter (relating to Budgeting for Eligibility and Co-payment).
§358.422. Notice and Fair Hearing.
The Texas Health and Human Services Commission follows §1924(e) of the Social Security Act (42 U.S.C. §1396r-5(e)) concerning notices and fair hearings for matters relating to spousal impoverishment.
§358.423. Transfer of Assets and Spousal Impoverishment.
See Division 4 of this subchapter (relating to Transfer of Assets) for requirements governing a transfer of assets under spousal impoverishment circumstances.