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72 TITLE 16 HEALTH AND SAFETY DELAWARE ADMINISTRATIVE CODE After an institutionalized individual has established eligibility for Medicaid, the state must protect part of the individual's income for the community spouse. Protect enough income to equal the community spouse income allowance. After eligibility has been determined, income paid solely to one spouse is attributed only to that named spouse. If income is paid to both it is attributed to both in equal parts. 20995.1 Post - Eligibility Deductions 42 CFR §435.725; 42 CFR §435.733; 42 CFR §435.832 Post-eligibility determination is revised to allow the following deductions from the income of the institutional spouse. The deductions must be taken in the following order: 20995.1.1 Personal Needs Allowance for the Institutional Spouse. The personal needs allowance amount is $30 per month for SSI recipients, and $75 per month for all others. If the institutionalized spouse is employed, personal needs may range from $75 up to the Adult Foster Care rate per month. 20995.1.2 Community Spouse Income Allowance 20995.1.2.1 The community spouse monthly income allowance is the amount of income necessary to bring the spouse's monthly otherwise available income up to the applicable percent of the FPL for two, plus an additional amount for excess shelter. 20995.1.2.2The total amount available to the community spouse may not exceed "Cap for Minimum Monthly Maintenance Standard. This standard usually changes each January based on the Consumer Price Index for Urban Consumers. 20995.1.3 Family Allowance 20995.1.4 Items for which protection of income has been approved by the Long-Term Care Operation's Administrator or incurred medical expenses of the institutionalized spouse. 10 DE Reg. 703 (10/01/06) 19 DE Reg. 1095 (06/01/16) 28 DE Reg. 545 (01/01/25) 20995.2 Amount for Incurred Medical Expenses The financial eligibility worker must take into account amounts for incurred medical expenses of the institutionalized spouse within reasonable limits as defined by the State. These are expenses that are not covered by any third party payor and for which the couple is responsible. Questions regarding what constitutes necessary medical or remedial care and what constitutes reasonable limits should be referred to and resolved by the Medical Review Team. Incurred expenses for medical or remedial care that are not subject to payment by a third party, include-- 1) Medicare and other health insurance premiums, deductibles or coinsurance, and 2) necessary medical or remedial care recognized under State law but not covered under the state plan under this title, subject to reasonable limits the State may establish on the amount of these expenses. 20995.3 Exemptions to Allowance Determination 20995.3.1 Treatment of Court-ordered Support If court-ordered support for the community spouse is greater than the calculated community spouse income allowance, the amount of the support is to be recognized as the income allowance. For example, if the institutionalized spouse was ordered to pay $200/month to the community spouse, that amount would be allowed and deducted even if it exceeded the calculated income allowance. 20995.3.2 Fair Hearings Either spouse can appeal the amount of the monthly income allowance or how the income otherwise available to the community spouse was determined. In addition, the allowance can be adjusted higher than that allowed above if they can show that additional income is necessary due to "exceptional circumstances resulting in significant financial duress."

7 DE Reg. 781 (12/1/03) 8 DE Reg. 1312 (3/1/05) 8 DE Reg. 1625 (05/01/05) 8 DE Reg. 1712 (6/1/05) 9 DE Reg. 142 (7/1/05) 9 DE Reg. 239 (8/1/05) 9 DE Reg. 564 (10/01/05) 9 DE Reg. 997 (12/01/05) 9 DE Reg. 1076 (01/01/06)