26-18-3.6 - Income and resources from institutionalized spouses. - Utah Statutes

26-18-3.6. Income and resources from institutionalized spouses.
(1) As used in this section:
(a) "Community spouse" means the spouse of an institutionalized spouse.
(b) (i) "Community spouse monthly income allowance" means an amount by which theminimum monthly maintenance needs allowance for the spouse exceeds the amount of monthlyincome otherwise available to the community spouse, determined without regard to theallowance, except as provided in Subsection (1)(b)(ii).
(ii) If a court has entered an order against an institutionalized spouse for monthly incomefor the support of the community spouse, the community spouse monthly income allowance forthe spouse may not be less than the amount of the monthly income so ordered.
(c) "Community spouse resource allowance" is an amount by which the greatest of thefollowing exceeds the amount of the resources otherwise available to the community spouse:
(i) $15,804;
(ii) the lesser of the spousal share computed under Subsection (4) or $76,740;
(iii) the amount established in a hearing held under Subsection (11); or
(iv) the amount transferred by court order under Subsection (11)(c).
(d) "Excess shelter allowance" for a community spouse means the amount by which thesum of the spouse's expense for rent or mortgage payment, taxes, and insurance, and in the caseof condominium or cooperative, required maintenance charge, for the community spouse'sprincipal residence and the spouse's actual expenses for electricity, natural gas, and water utilitiesor, at the discretion of the department, the federal food stamp standard utility allowance, exceeds30% of the amount described in Subsection (9).
(e) "Family member" means a minor dependent child, dependent parents, or dependentsibling of the institutionalized spouse or community spouse who are residing with the communityspouse.
(f) (i) "Institutionalized spouse" means a person who is residing in a nursing facility andis married to a spouse who is not in a nursing facility.
(ii) An "institutionalized spouse" does not include a person who is not likely to reside in anursing facility for at least 30 consecutive days.
(g) "Nursing care facility" is defined in Section 26-21-2.
(2) The division shall comply with this section when determining eligibility for medicalassistance for an institutionalized spouse.
(3) For services furnished during a calendar year beginning on or after January 1, 1999,the dollar amounts specified in Subsections (1)(c)(i), (1)(c)(ii), and (10)(b) shall be increased bythe division by the amount as determined annually by the federal Health Care FinancingAdministration.
(4) The division shall compute, as of the beginning of the first continuous period ofinstitutionalization of the institutionalized spouse:
(a) the total value of the resources to the extent either the institutionalized spouse or thecommunity spouse has an ownership interest; and
(b) a spousal share, which is 1/2 of the resources described in Subsection (4)(a).
(5) At the request of an institutionalized spouse or a community spouse, at the beginningof the first continuous period of institutionalization of the institutionalized spouse and upon thereceipt of relevant documentation of resources, the division shall promptly assess and documentthe total value described in Subsection (4)(a) and shall provide a copy of that assessment and

documentation to each spouse and shall retain a copy of the assessment. When the divisionprovides a copy of the assessment, it shall include a notice stating that the spouse may request ahearing under Subsection (11).
(6) When determining eligibility for medical assistance under this chapter:
(a) Except as provided in Subsection (6)(b), all the resources held by either theinstitutionalized spouse, community spouse, or both, are considered to be available to theinstitutionalized spouse.
(b) Resources are considered to be available to the institutionalized spouse only to theextent that the amount of those resources exceeds the amounts specified in Subsections (1)(c)(i)through (iv) at the time of application for medical assistance under this chapter.
(7) The division may not find an institutionalized spouse to be ineligible for medicalassistance by reason of resources determined under Subsection (5) to be available for the cost ofcare when:
(a) the institutionalized spouse has assigned to the state any rights to support from thecommunity spouse;
(b) (i) except as provided in Subsection (7)(b)(ii), the institutionalized spouse lacks theability to execute an assignment due to physical or mental impairment;
(ii) Subsection (7)(b)(i) does not prevent the division from seeking a court order seekingan assignment of support; or
(c) the division determines that denial of medical assistance would cause an undueburden.
(8) During the continuous period in which an institutionalized spouse is in an institutionand after the month in which an institutionalized spouse is eligible for medical assistance, theresources of the community spouse may not be considered to be available to the institutionalizedspouse.
(9) When an institutionalized spouse is determined to be eligible for medical assistance,in determining the amount of the spouse's income that is to be applied monthly for the cost of carein the nursing care facility, the division shall deduct from the spouse's monthly income thefollowing amounts in the following order:
(a) a personal needs allowance, the amount of which is determined by the division;
(b) a community spouse monthly income allowance, but only to the extent that theincome of the institutionalized spouse is made available to, or for the benefit of, the communityspouse;
(c) a family allowance for each family member, equal to at least 1/3 of the amount thatthe amount described in Subsection (10)(a)(i) exceeds the amount of monthly income of thatfamily member; and
(d) amounts for incurred expenses for the medical or remedial care for theinstitutionalized spouse.
(10) (a) Except as provided in Subsection (10)(b), the division shall establish a minimummonthly maintenance needs allowance for each community spouse which is not less than the sumof:
(i) 150% of the current poverty guideline for a two-person family unit that applies to thisstate as established by the United States Department of Health and Human Services; and
(ii) an excess shelter allowance.
(b) The amount provided in Subsection (10)(a) may not exceed $1,976, unless a court

order establishes a higher amount.
(11) (a) An institutionalized spouse or a community spouse may request a hearing withrespect to the determinations described in Subsections (11)(e)(i) through (v) if an application formedical assistance has been made on behalf of the institutionalized spouse.
(b) A hearing under this subsection regarding the community spouse resource allowanceshall be held by the division within 90 days from the date of the request for the hearing.
(c) If either spouse establishes that the community spouse needs income, above the levelotherwise provided by the minimum monthly maintenance needs allowance, due to exceptionalcircumstances resulting in significant financial duress, there shall be substituted, for the minimummonthly maintenance needs allowance provided under Subsection (10), an amount adequate toprovide additional income as is necessary.
(d) If either spouse establishes that the community spouse resource allowance, in relationto the amount of income generated by the allowance is inadequate to raise the communityspouse's income to the minimum monthly maintenance needs allowance, there shall besubstituted, for the community spouse resource allowance, an amount adequate to provide aminimum monthly maintenance needs allowance.
(e) A hearing may be held under this subsection if either the institutionalized spouse orcommunity spouse is dissatisfied with a determination of:
(i) the community spouse monthly income allowance;
(ii) the amount of monthly income otherwise available to the community spouse;
(iii) the computation of the spousal share of resources under Subsection (4);
(iv) the attribution of resources under Subsection (6); or
(v) the determination of the community spouse resource allocation.
(12) (a) An institutionalized spouse may transfer an amount equal to the communityspouse resource allowance, but only to the extent the resources of the institutionalized spouse aretransferred to or for the sole benefit of the community spouse.
(b) The transfer under Subsection (12)(a) shall be made as soon as practicable after thedate of the initial determination of eligibility, taking into account the time necessary to obtain acourt order under Subsection (12)(c).
(c) Title 26, Chapter 19, Medical Benefits Recovery Act, does not apply if a court hasentered an order against an institutionalized spouse for the support of the community spouse.

Enacted by Chapter 243, 1997 General Session