Page 2252

(a) An applicant for, or recipient of, Medicaid under 7 AAC 100.500 may allocate or transfer resources or income to a community spouse to prevent the community spouse from becoming impoverished while supporting the spouse residing in a medical institution or receiving home and community-based waiver services. A resource or income allocated or transferred under this section is not counted when determining whether the applicant or recipient meets the financial eligibility criteria of 7 AAC 100.502. (b) To determine eligibility under 7 AAC 100.502, all countable resources owned by one or both spouses are combined as of the date the applicant entered a medical institution or was approved under 7 AAC 130.205 — 7 AAC 130.219 for home and community-based waiver services. Before determining the total countable resources of the long-term care spouse, a portion of the combined resources may be allocated to the community spouse to keep that spouse from becoming impoverished, not to exceed the maximum community spouse resource allowance authorized under 42 U.S.C. 1396r-5(f)(2)(A). The amount of combined resources, less the maximum community spouse resource allowance and any additional allowance ordered or authorized under (e) of this section, is considered available to the long-term care spouse when determining the amount of countable resources under 7 AAC 100.502(a)(2), regardless of which spouse owns the remaining unallocated resources. (c) The long-term care spouse has until the date of the long-term care spouse’s first redetermination under 7 AAC 100.020 — 7 AAC 100.030 to transfer to the community spouse legal ownership of all countable resources allocated to the community spouse under (b) of this section. After that date, all countable resources are considered available to the spouse in whose name they are held, with jointly held resources allocated one-half to each spouse unless the department determines that the value of the resources should be allocated differently. (d) Following the initial eligibility determination, if reported changes occur in the amount of countable resources available to the long-term care spouse, the department will reevaluate the eligibility of the long-term care spouse. The maximum community spouse resource allowance remains in effect until the first redetermination in accordance with (c) of this section. After the initial eligibility determination, any additional resource acquired by and held in the sole name of the community spouse is not a countable resource available to the long-term care spouse. (e) The maximum community spouse resource allowance may be augmented for the following reasons:

(1) the commissioner or the commissioner’s delegee acting under 7 AAC 49 decides that the community spouse must retain a higher amount of resources to raise the income generated from those resources to the minimum amount deductible as a community spouse allowance under 7 AAC 100.560;

(2) the commissioner or the commissioner’s delegee acting under 7 AAC 49 decides that the amount of countable resources used to determine eligibility was incorrect;

(3) a court orders an additional amount of the long-term care spouse’s resources be transferred to the community spouse or other dependents;