Section R9-28-410. Community Spouse

A.      The methodology in this Section applies to an institutionalized person who has a community spouse.

B.       If the institutionalized person's most current period of continu- ous institutionalization began on or after September 30, 1989, the Administration shall use the methodology for the treatment of resources under 42 U.S.C. 1396r-5(c).

1.        The following resource criteria shall be used in addition to the criteria specified in R9-28-407 to be eligible:

a.         Resources owned by a couple at the beginning of the first continuous period of institutionalization from and after September 30, 1989, shall be computed from the first day of institutionalization. The total value of resources owned by the institutionalized spouse and the community spouse, and a spousal share equal to one-half of the total value, are com- puted under 42 U.S.C. 1396r-5(c)(1).

b.        The Community Spouse Resource Deduction (CSRD) is calculated under 42 U.S.C. 1396r-5(f)(2).

c.         The CSRD is subtracted from the total resources of the couple to determine the amount of the couple's resources considered available to the institutional- ized  spouse  at  the  time  of  application   under  42

U.S.C. 1396r-5(c)(2).

i.         Resources in excess of the CSRD must be equal to or less than the standard for a person speci- fied in R9-28-407.

ii.        The CSRD is allowed as a deduction for 12 consecutive months beginning with the first month in which the institutionalized spouse is eligible for ALTCS benefits. Beginning with the 13th month, the separate property of the institutionalized spouse must be within the resource standard for a person specified in R9- 28-407.

iii.      If a person who was previously eligible  for ALTCS as an institutionalized person with a community spouse reapplies for ALTCS after a break in institutionalization of more than 30 days, the CSRD will be allowed as a deduction from resources for a 12-month period in addi- tion to the period in subsection (c)(ii).

2.        Resources are excluded as specified in R9-28-407, except that one vehicle is totally excluded regardless of its value, and any additional vehicles are included using equity value.

3.        The Director may grant eligibility if the Administration determines that a denial of eligibility would create an undue hardship for the institutionalized spouse.

C.      This Section applies to the income eligibility and post-eligibil- ity  treatment  of  income  beginning   September  30,  1989,

regardless  of  when  the  first  period  of  institutionalization began.

1.        Income payments are attributed to the institutionalized person and the community spouse under 42 U.S.C. 1396r- 5(b)(2).

2.        Income is excluded as specified in R9-28-408.

3.        The institutionalized spouse's income eligibility is deter- mined by combining the income of the institutionalized person and the community spouse and dividing by two. If the institutionalized person is not eligible using this method, the income eligibility shall be based on the income received in the person's name.

4.        The following allowances described in 42 U.S.C. 1396r- 5(d)(1) and (2) are allowed as deductions from the institu- tionalized spouse's income in determining share-of-cost:

a.         A personal-needs allowance specified in R9-28- 408(E)(5);

b.        A community spouse monthly income allowance, but only to the extent that the institutionalized spouse's income is made available to or for the bene- fit of the community spouse;

c.         A family allowance for each family member equal to one-third of the amount remaining after deducting the countable income of the household member from a Minimum Monthly Maintenance Needs Allowance (MMMNA);

d.        An amount for medical or remedial services as spec- ified in R9-28-408; and

e.         An amount for Medicare and other health insurance premiums, deductibles, or coinsurance not subject to third-party reimbursement.

D.      Transfers.

1.        The institutionalized spouse may transfer to any of the following an amount of resources equal to the CSRD without affecting eligibility under 42 U.S.C. 1396r-5(f). The institutionalized spouse may transfer resources to:

a.         The community spouse; or

b.        Someone other than the community spouse if the resources are for the sole benefit of the community spouse.

2.        The institutionalized spouse is allowed a period of 12 consecutive months, beginning with the first month of eligibility, to transfer resources in excess of the resource standard in R9-28-407 to the persons listed in subsection (D)(1).

3.        All other transfers by the institutionalized person or trans- fers by the community spouse are treated under the provi- sions in R9-28-409.

E.       Specific hearing rights as described under 9 A.A.C. 34 apply to a person whose eligibility is determined under this Section.

1.        The institutionalized spouse or the community spouse is entitled to a fair hearing if dissatisfied with the determi- nation of any of the following:

a.         The community spouse monthly income allowance,

b.        The amount of monthly income allocated to the community spouse,

c.         The computation of the spousal share of resources,

d.        The attribution of resources, or

e.         The CSRD.

2.        The hearing officer may increase the amount of the MMMNA if either the community spouse or institutional- ized spouse establishes that the community spouse needs income above the established MMMNA due to excep- tional circumstances.

3.        The hearing officer may increase the amount of the CSRD to allow the community spouse to retain enough

resources to generate income to meet the MMMNA. The hearing officer may allow the community spouse to retain an amount of resources necessary to purchase a single premium life annuity that would furnish monthly income sufficient to bring the community spouse's total monthly income up to the MMMNA.

Historical Note

New Section adopted by final rulemaking at 5 A.A.R. 369, effective January 6, 1999 (Supp. 99-1). Amended by

final rulemaking at 14 A.A.R. 2090, effective July 5,

2008 (Supp. 08-2). Amended by final rulemaking at 20

A.A.R. 234, effective January 7, 2014 (Supp. 14-1).