Page 68

68 TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE See DSSM 20100.2.2 (income standards) and 20300 (resource standards). 9 DE Reg. 142 (07/01/05) 12 DE Reg. 224 (08/01/08) 20900 Spousal Impoverishment Section 303 of the Medicare Catastrophic Act contains provisions that significantly change the way in which income and resources of a couple are calculated when one spouse is institutionalized or likely to be institutionalized for continuous periods in a nursing facility, and who has a spouse residing in the community. The revisions are intended to prevent the spouse who remains in the community from becoming impoverished either before or after the institutionalized spouse becomes eligible for Medicaid. Effective July 1, 1993, Delaware elected the option to apply the Spousal Impoverishment rules to persons who are likely to receive services under Section 1915(c) the Home and Community Based Waivers. All references to institutionalized spouses and continuous periods of institutionalization include spouses receiving Home and Community Based Waiver services in lieu of institutional services. Individuals receiving a combination of institutional and waiver services are subject to these rules. Generally, the Bill counts income as Medicaid policy has always counted income (i.e., income owned by only one spouse is considered available solely to that spouse). One change is that income in both their names is divided evenly between the two spouses. The most drastic change occurs in the calculation of resources. Medicaid has always viewed the resources held solely by the non-institutionalized spouse as not available to the institutionalized spouse. Under the Spousal Impoverishment provisions, all assets/resources held by either or both spouses are considered available equally to both spouses as of the beginning of the first continuous period of institutionalization (beginning on or after 9/30/89). The couple's house, car, and personal goods are excluded from countable resources. Resource rules described in this section apply only to persons first institutionalized for continuous periods on or after September 30, 1989. Persons first institutionalized before that date are subject to prior Medicaid plan policies as long as they remain in an institution. The spousal impoverishment regulations must be applied to any couple who is legally married unless the couple is separated and maintains two separate residences for at least 12 months prior to admission to a medical institution (hospital, nursing facility, etc.) AND the community spouse is uncooperative or his/her whereabouts are unknown. These rules apply regardless of State laws relating to community property or to the division of marital property. For example, resources listed in a prenuptial agreement are not excluded. The income eligibility and post-eligibility provisions in the instruction are effective September 30, 1989, and the resources provisions are effective October 1, 1989 for persons first institutionalized for continuous periods of institutionalization beginning on or after September 30, 1989. 20900.1 Undue Hardship Spousal Impoverishment rules may be waived if the application of the rules would cause an undue hardship. Undue hardship exists when application of the spousal impoverishment provisions would deprive the individual of medical care such that his/her life would be endangered. Undue hardship also exists when application of the spousal impoverishment provisions would deprive the individual of food, clothing, shelter or other necessities of life. 20 DE Reg. 52 (07/01/16) 20910 Definitions 20910.1 Institutionalized Spouse 20910.2 Community Spouse 20910.3 Family Member 20910.4 Minimum Monthly Maintenance Needs Allowance 20910.5 Excess Shelter Allowance 20910.6 Community Spouse Monthly Income Allowance 20910.7 Monthly Income of the Community Spouse 20910.8 Family Allowance 20910.9 State Spousal Share 20910.10 Community Spouse Resource Allowance 20910.1 Institutionalized Spouse