Page 102
State of Maryland Medical Assistance Manual Revised April 2014
Condition 2: Cooperation in Non-Support Action and Assignment of Court Ordered Support to the State To meet this condition, two circumstances must exist: 1. The institutionalized person, guardian or attorney in fact must take all required steps to obtain support, including agreeing to cooperate in criminal prosecution of the community spouse. 2. All support rights have been assigned to the State by the institutionalized spouse.
Circumstance 1 may be waived if the Department determines that denial of eligibility would work an undue hardship on the applicant. The LDSS must refer all requests for consideration of undue hardship through the Division of Eligibility Services and the determination of a hardship case may come only from this office.
An example of undue hardship would be a case where a couple has been separated for many years, the applicant has failed in the attempt to locate the spouse, and there is no reasonable method of ascertaining spousal resources. Both the length of separation and attempts to locate must be documented. Condition number one (no access) is presumed to be met since the community spouse, and likewise his or her assets, cannot be located. Condition 2 pursuit of criminal action, is waived since the spouse cannot be located to take court action against. In this case, protection under the assignment provision may be provided based on undue hardship.
A second example of undue hardship is where the pursuit of criminal action might reasonably be expected to result in harm to the applicant. If there is a documented history of spousal abuse by the community spouse, the institutionalized spouse may claim good cause for failing to pursue criminal action. Under these circumstances, protection under the assignment provision may be provided based on undue hardship.
Consequences for the Community Spouse
In the case where eligibility is granted because spousal resources have not been counted under the Assignment of Support Provision, there are certain actions that will be taken by the Department. They are:
1. The name of the community spouse will be referred to the State’s Attorney for possible criminal prosecution; 2. The name of the community spouse will be referred to other governmental agencies, as appropriate; and 3. The community spouse will be held responsible for all payments made on behalf of the institutionalized spouse, including both administrative costs and payments for care.