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TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE 71 increase the amount of the couple’s resources that would be protected from consideration in evaluating the institutionalized spouse’s Medicaid eligibility. This is referred to as the "income first" methodology for determining the extent of protection of the couple’s assets and applies to transfers and allocations of income and resources made on or after the date of enactment by individuals who become institutionalized spouses on or after such date. 10 DE Reg. 283 (10/01/06) 20960 Exemptions to Minimum Resource Allowance If there is a court order against an institutionalized spouse for the support of the community spouse which requires a greater resource allowance than that determined above, that amount shall be used for determining initial and ongoing eligibility. This would not be considered a transfer. 20970 Fair Hearings Either spouse can appeal the computation of the 1/2 spousal share, how resources are calculated for initial eligibility purposes, or the amount of the community spouse resource allowance. In addition, if either spouse establishes that the resource allowance is inadequate to bring the community spouse's income up to the minimum income allowance level + excess shelter, the resource allowance can be increased so that this level is reached. This would likely occur in instances in which the spouses' combined income falls below the minimum income allowance level. The community spouse may need income generated from resources to supplement existing income. Hearings requested on the basis of these computations must be conducted within 30 days from the date of request. 20970.1 Income First Policy for Increasing the Spousal Resource Allowance to Compensate for Insufficient Income In nursing facility cases with a community spouse, the institutionalized spouse can make a request or file an appeal to increase the community spouse resource allowance (CSRA) to produce additional income for the community spouse. The hearing officer, as appropriate, may then increase the CSRA to an amount that is adequate to produce income that equals, but does not exceed, the MMMNA. For Home and Community Based Services Waiver applicants/recipients see DSSM 20720.2. 10 DE Reg. 283 (10/01/06) 20980 Continuing Eligibility Beginning in the month following the month in which the institutionalized spouse is determined to be eligible, no resources solely owned by the community spouse shall be deemed available to the institutional spouse. Thus, to benefit from the community spouse resource allowance, the institutionalized spouse will need to actually transfer sufficient resources to equal the amount of the allowance to the community spouse so that those resources will not cause ineligibility at redetermination. 20990 Income Rules Income eligibility is determined by considering the income of the institutionalized spouse only. The sole deduction taken from the gross income before comparing to the income limit is the $20 disregard. Neither the community spouse income allowance nor the family allowance may be deducted to bring the income below the income limit. Income in both spouses names is considered to be equally available to both spouses within the following guidelines. 20990.1 Income From Non-Trust Property 1) 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. 2) 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 3) 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). 4) Consider available to each spouse one-half of any income which has no instrument establishing ownership. 20990.2 Income From Trust Property In the case of a trust, income shall be considered available to each spouse as provided in the trust, or, in the absence of a specific provision in the trust, use the guidelines specified for non-trust property. 20995 Continuing Eligibility