The Medicare Catastrophic Coverage Act of 1988 created income and resource rules for married persons. The rules are called the Spousal Impoverishment provisions. They were effective October 1, 1989. The purpose of the Spousal Impoverishment rules is to allow a person applying for or receiving LTC services to protect a minimum level of income and resources for the spouse not in need of LTC services.
These rules apply to an institutionalized spouse (IS), who is applying for or receiving payment of services in an LTC facility or in a Home and Community-Based setting. A community spouse (CS) is a person who is married to the IS and lives in the community.
NOTE: An estranged spouse is considered to be a CS. There is no provision to exempt separated spouses from the Spousal Impoverishment requirements. See Chapter 440.891, Undue Hardship Due to Extenuating Circumstances for exceptions.
Spousal Impoverishment provisions apply to married persons (regardless of a prenuptial or other legal agreement), when one spouse is admitted to an LTC facility and applies for MA LTC, one spouse is admitted to an LTC facility for a continuous period of at least 30 days or is assessed functionally eligible for Home and Community Based Services (HCBS).
Continuous means uninterrupted and expected to last at least 30 days. The continuous period must be verified by a doctor's statement or any other form approved by the Department; such as the (Medical Evaluation (MA 51) form or the Home and Community Based Services (HCBS) Eligibility/Ineligibility/Change (PA 1768) form.
The Spousal Impoverishment provisions protect resources for the spouse of an individual applying for or receiving payment of LTC services. Resources above the current resource limit must be reduced to the appropriate resource limit for the individual applying for or receiving payment of LTC services.
The resources may be reduced by:
Privately paying the LTC facility
Paying other medical bills
Buying an irrevocable burial reserve
Buying personal items for the IS or CS
NOTE: It could affect the date of retro-active eligibility for MA LTC if resources are reduced on anything other than medical expenses or an irrevocable burial reserve.
When resources are disposed of, the individual or CS must receive a return equal to the fair market value (FMV) for the resource. The person or CS must receive fair consideration. See Section 440.8, Disposition of Assets and Fair Consideration.
NOTE: Per Act 144 of 2004, Pennsylvania no longer recognizes a common law marriage entered into after January 1, 2005. If an applicant alleges that he/she is a common law spouse, the CAO must have proof that the couple was holding themselves out to the community as a married couple on or before January 1, 2005.
Proof includes, but is not limited to:
The deed to their home
Income tax records
Bank records
Leases
Utility bills
Statements from knowledgeable individuals.
For recipients whose record shows that they have been presenting themselves to be married under common law on or before January 1, 2005, the CAO should continue to recognize the common law marriage. There is no need to get proof.
NOTE: A spouse living in a Personal Care or Domiciliary Care home, who is married to an institutionalized spouse, is considered a community spouse.
A couple may have their resources assessed to protect resources for the CS. The amount that can be protected is called the Community Spouse Resource Allowance (CSRA). The CS is entitled to protect at a minimum one-half of the combined countable resources, subject to a minimum and maximum amount as mandated by the federal government.
The maximum and minimum CSRA is subject to change effective January 1st of each year. See Section 440.91 Resource Assessment for more information. See Appendix A for the current limits.
Resources are assessed as of:
The day of admission to an LTC facility and the institutionalized spouse is applying for MA LTC.
The day of admission to an LTC facility for a continuous period of at least 30 days.
The date the person is assessed functionally eligible for HCBS.
The CAO will count resources owned by both the IS and CS. The amount of resources in excess of the CSRA is considered available to the IS. 55 Pa. Code § 178.2 55 Pa. Code § 178.121
The CS may be able to protect additional resources. The CAO must first determine the Community Spouse Monthly Maintenance Needs Allowance (CSMMNA). The CSMMNA is an amount of income that the IS may give to the CS.
The IS may contribute a portion of the IS income to the CS if it is determined that a shortfall exists between the CS gross monthly countable income and the calculated CSMMNA. An amount equal to the difference between the CS gross monthly countable income and the CSMMNA can be contributed from the IS to the CS.
See Section 468.33, Community Spouse Maintenance Needs Allowance for more information
If a shortfall exists after the contribution of all available income from the IS, additional resources above the protected portion (CSRA) of the couple’s resources for the CS can be made available to the CS to generate monthly income for the CS. See Section 440.922, Spousal Impoverishment Fair Hearing for more information.
Either spouse or a person acting on behalf of either spouse may appeal the determination of the CSRA or CSMMNA and request a fair hearing at the time of the MA LTC application. The hearing decision may result in an increase of the spousal share. The CAO will use the spousal share protected decided by the fair hearing process. 55 Pa. Code § 181.452(d)(2)
Spousal Impoverishment requirements no longer apply beginning the first full month after a change in circumstances. Examples of change in circumstance are:
1. The CS enters an LTC facility or begins receiving HCBS.
NOTE: If one of the spouses returns home (leaves the LTC facility) the CAO must begin to apply Spousal Impoverishment provisions since there will be a community spouse.
Example 1: Wife enters an LTC facility in June 2009 and was private pay until September 2009 when she applies for MA LTC. Her husband had been living in the community until July 2010, when he was also admitted to the LTC facility. The husband’s discharge plan states he will return home in November 2010.
Spousal Impoverishment requirements are discontinued in August 2010. Resource eligibility is based only on the applicant’s (husband’s) July resources. Once the CS returns home in November 2010, Spousal Impoverishment requirements apply.
NOTE: An exception is that Spousal Impoverishment provisions continue to apply if the CS is found eligible for a Home and Community Based Services (HCBS) Waiver Program while the spouse is in an LTC facility. The spouse who is eligible for (or receiving) a spousal maintenance needs allowance from the spouse in the LTC facility remains eligible for the monthly income contribution from the spouse in the LTC facility.
Example 2: Mr. J enters an LTC facility in June. Mrs. J receives a spousal maintenance needs allowance of $1,000 a month from Mr. J. Mrs. J’s total monthly income (her monthly income plus spousal maintenance needs allowance) is $2,000. The following January, Mrs. J is determined to need and clinically qualify for an HCBS Waiver Program. Mrs. J meets both income and resource eligibility requirements for MA HCBS.
Her protected spousal share of resources of $20,000 has been reduced to $7,000. Her disposal of $13,000 in resources meets fair consideration requirements. Her total monthly income including the spousal maintenance needs allowance from Mr. J is less than 300% of the Federal Benefits Rate. Mrs. J can continue to receive the $1,000 spousal needs allowance from Mr. J.
2. The IS is discharged or terminated from receiving LTC services (not including hospital or therapeutic leave days).
3. One spouse dies.
4. The marriage is legally dissolved.
The purpose of the resource assessment is to determine the amount of countable resources the community spouse (CS) can protect. The couple must provide enough information to establish and verify the value of resources.
NOTE: The resource assessment includes the resources of the spouse regardless of a prenuptial agreement or other agreement.
The resource assessment is based on all resources owned by both spouses on:
The date one spouse is admitted to an LTC facility and is applying for MA LTC.
The date one spouse is admitted to an LTC facility for a continuous period of at least 30 days.
The date the spouse is assessed functionally eligible for HCBS.
55 Pa. Code § 178.121 42 U.S.C.A. § 1396r-5(c )(2)
Resources that are excluded when determining eligibility for MA LTC are also excluded when completing the resource assessment. See Section 440.6, Resource Exclusions for a complete listing of excluded resources. Pa. Code § 178.122(d)
Because resources are combined, it is not necessary to determine the legal share of resources owned by the spouses. However, if a person other than the spouse has shared legal ownership, the CAO must determine the availability and value of that resource. See Section 440_2, Determination of Ownership.3.
A resource assessment should be completed when a married person is admitted to an LTC facility regardless of whether he is applying for MA LTC. Either spouse, or a person acting on behalf of either spouse, may request the assessment. If no assessment has been completed and the person is applying for MA LTC at the time of admission or later, the CAO will complete the assessment as part of the application process.
55 Pa. Code § 178.122(b) 42 U.S.C.A. § 1396r-5(c )(2)
A resource assessment must be completed when a married individual is assessed functionally eligible for HCBS.
Regardless of when the assessment is completed, it is based on the resources owned on the date of admission to the LTC facility or the date the spouse is assessed functionally eligible for HCBS. 55 Pa. Code § 178.121
All persons are given the Admissions Notice Packet (MA 401) when they enter an LTC facility. Sections 3 and 4 of the packet pertain to married couples when one spouse enters an LTC facility and the other remains in the community. There is a Resource Assessment Form (PA 1572) in the packet for couples who wish to have a Resource Assessment completed. The PA 1572 has instructions for completing the form and providing documents to prove the information as of the date of admission.
The individual or a relative, friend, or representative may complete the PA 1572 The individual completing the form must provide the information requested on the form and attach proof, such as photocopies of documents, showing ownership and value. The form describes acceptable types of proof. The individual should send the PA 1572 to the CAO where the LTC facility is located. 55 Pa. Code § 178.122(b)
The spousal share is based solely on the total countable verified resources owned by the couple on:
The date the spouse is admitted to an LTC facility and is applying for MA LTC; or
The date the spouse is admitted to an LTC facility for a continuous period of at least 30 days, or
The date the spouse is assessed functionally eligible for HCBS. 55 Pa. Code § 178.123(b)
The CAO will complete a resource assessment at application for a married individual applying for HCBS. Reported resources not verified by acceptable proof cannot be protected.
At application, the CAO will use the amount previously determined by the Resource Assessment as the amount protected for the CS, unless information shows that the assessment was based on incorrect or incomplete information. If the assessment was incorrect, the CAO will revise the protected amount. If the individual disagrees with the amount protected, either spouse or a representative may request a fair hearing.
55 Pa. Code § 178.122(h) 55 Pa. Code § 178.124(b)
The CAO will revise the original RA if it was artificially increased by making an excluded resource an available resource and that resource is later reported as an excluded resource at the time of application.
Example: Mr. B is admitted to an LTC facility on June 1. The couple has placed their home into a revocable trust. The fair market value of the property is $120,000. The couple has an additional $60,000 in countable resources. The CAO completes a RA on July 1 and determines the CS’s protected share to be $90,000. The CS has continued to live in the home. On July 15, the CS removes the home from the trust and wants the CAO to now consider the resident property excluded. The CAO will revise the original RA and exclude the property. The CS’s new protected share would be $30,000.
The CAO will complete the resource assessment within 45 calendar days from the date of receipt of the PA 1572 and send the Results of Resource Assessment (PA 1887) letter to:
The IS.
The CS.
The person acting on behalf of each spouse (if applicable).
The resource assessment results will specify the total amount of countable resources, the amount of the spousal share, and the right to a fair hearing at the time of an application for LTC services.
55 Pa. Code § 178.123(e) 42 U.S.C.A. § 1396r-5(c )(2) 55 Pa. Code § 178.122(c)
The CAO will enter the information into the MAPPER system. See Appendix E for MAPPER procedures. The CAO will keep the PA 1572 the supporting documentation, and a copy of the notice.
The CAO will access the MAPPER System for every LTC spousal application. When the CAO authorizes MA LTC for a person listed on the MAPPER system, the person will be automatically deleted from the MAPPER file at the end of the month. It is not necessary for the CAO to delete assessments.
If MA LTC is denied, the CAO will change the resource assessment information in MAPPER depending upon whether the resource amount is different, inaccurate, or incomplete. The CAO will enter status code D if notified of the individual’s death.
The coding in the MAPPER system is used to identify individuals who have not applied for MA and to notify them of changes in the amount of protected resources due to the annual increases in the allowable resource limits based on the Consumer Price Index.
At application, the CAO will determine the spousal share of resources if a resource assessment was not previously completed.
NOTE: If a Resource Assessment was not completed before the MA LTC application, the CAO will record the appropriate information directly onto the appropriate pages of the case record. Enter the information into the MAPPER system only if MA LTC is not authorized. 55 Pa. Code § 178.123(1)
DHS is not required to accept the resource assessment from the original state if an institutionalized spouse moves to an LTC facility in Pennsylvania. The CAO may complete its own resource assessment. The assessment must be based on resources the couple owned on the spouse’s first day of institutionalization for a continuous period.
The amount of resources protected for the CS is called the spousal share. It is also called the community spouse resource assessment (CSRA). The CAO determines the spousal share as of:
The date the spouse is admitted to an LTC facility and is applying for MA LTC; or
The date of admission to an LTC facility for a continuous period of at least 30 days, or
The date the spouse is assessed functionally eligible for HCBS.
55 Pa. Code § 178.123(b) 55 Pa. Code § 178.121(g)
To determine the spousal share:
1. Total the countable resources of the husband and wife on the date of admission or the date the spouse is assessed functionally eligible for HCBS, regardless of ownership.
2. Compare the total countable resources to the Spousal Impoverishment minimum and maximum limits in Appendix A.
3. If the total countable resources are equal to or less than the minimum limit, the spousal share is the total countable resources owned by both spouses.
Example: Mr. and Mrs. W. have total countable resources of $20,000. Half of the amount is $10,000. The spousal share is $20,000 or the minimum.
4. If half of the total countable resources are equal to or more than the current maximum limit, the spousal share is the maximum.
Example: Mr. and Mrs. W. have total countable resources of $1,000,000. Half of the amount is $500,000. The spousal share is the maximum.
5. If half of the total countable resources are more than the current minimum, but less than the current maximum limit, the spousal share is half of the total of the countable resources.
Example: Mr. and Mrs. W have total countable resources of $130,000 in stocks and bonds. Half the amount is $65,000. The spousal share is $65,000.
The minimum and maximum spousal resource standard may be adjusted in January of each calendar year.
A CS may keep resources up to the amount of the spousal share without affecting the eligibility of the spouse who applies for LTC services.
55 Pa. Code § 178.124(a) 55 Pa. Code § 178.123
The applicant may appeal the determination of the spousal share at the time application is made for MA LTC. If the spousal determination was incorrect or if the person presents other information at application, the CAO may revise the assessment. If the applicant appeals the decision, the Bureau of Hearings and Appeals will hold a hearing if the individual or his representative believes:
The spousal share is not correct
The income generated from the spousal share of resources, together with the CS gross monthly income does not raise the CS income to the Community Spouse Monthly Maintenance Needs Allowance (CSMMNA) level
NOTE: The Department must first consider the IS income amount that is available to the CS to raise the CS income to the CSMMNA. Then the Department allocates additional resources to generate monthly income to provide the difference between the CSMMNA and all the other income available to the CS. If the CS income is still less than the CSMMNA after the CAO considers all IS income available to the CS to raise the CS income to CSMMNA, then a Department Administrative Law Judge (ALJ) will establish a resource amount to generate monthly income to assure that the CS has income equal to the CSMMNA.
55 Pa. Code § 178.124(a) DRA of 2005 (Pub. L. 109-171) § 6013
See Section 440.922 Spousal Impoverishment Fair Hearing.
Initial spousal share determination was based on inaccurate information
Initial spousal share was based on artificial inflation of the couple’s resources. See Section 440.91, Resource Assessment.
At application, the CAO will consider the resources available to both spouses as of the date of application. The person is resource eligible if:
After deducting the spousal share (the amount protected for the spouse in the community based on resources owned on the date of admission to the facility or the date the spouse is assessed functionally eligible for HCBS) plus any resource amount established by a Department Administrative Law Judge (if applicable), the remaining amount of resources is not more than the appropriate resource limit (including the $6,000 disregard, if applicable) in Appendix A and
The IS agrees in writing to transfer ownership of the spousal share of resources to the CS within 90 days. See Certification of Transfer of Resources (PA 1886) form.
55 Pa. Code § 178.124.4 55 Pa. Code § 178.124.5
At renewal, the CAO will consider only the resources of the IS when determining resource eligibility.
Each applicant or recipient has the right to request a hearing to appeal a decision or failure to act which affects the individual’s MA LTC benefits. The person or the individual’s legal representative, relative or friend may appeal a decision of the CAO and any agency that provides services under contract with the Department. For more information, see the Supplemental Handbook Chapter 870, Appeal and Fair Hearing.
NOTE: Anyone representing the individual may submit an LTC application. However, once a determination is made, only the individual or individual acting on behalf of the individual may request a hearing. An LTC service provider may not file an appeal unless they have the legal right to represent the individual.
55 Pa. Code § 133.84 55 Pa. Code § 275.1(a)
If the IS, CS or their representative contacts the CAO within 30 days of the mailing date of the results of resource assessment letter , the CAO will advise the individual to complete an MA LTC application for the IS.
The individual must complete an MA LTC application before requesting a fair hearing.
If the amount of the CS’s protected share of resources is not enough to meet the needs of the CS, the CS could potentially protect additional resources.
The CS should complete the Income Assessment Worksheet to determine if the need exists to protect additional resources. The Income Assessment Worksheet is used solely to provide an estimate of whether additional resources can be protected and is not required. The CS or their representative can request a fair hearing without completing the Income Assessment Worksheet.
The IS, CS or representative should submit the following information to the CAO:
1. All information necessary to determine MA LTC income and resource eligibility for the IS
2. Proof of the CS’s earned/unearned income
3. Proof of all the CS’s resources, whether individually owned, jointly owned with a spouse (entireties property) or jointly owned with a third party
4. Proof of the household shelter expenses
If the gross monthly income of the CS, including the income generated by the Community Spouse Resource Assessment (CSRA), is less than the Community Spouse Monthly Maintenance Needs Allowance (CSMMNA), use the IS’s available income to make up the difference between the CSMMNA and the CS’s gross monthly income.
If the gross monthly income of the CS, including income from the CSRA and the income that is considered available from the IS, is less than the CSMMNA, the couple can protect additional resources from the couple’s non-protected share in order to generate the income necessary to fully fund the CSMMNA. DRA of 2005 (Pub. L. 109-171) § 6013
To determine the CSMMNA, the CAO will determine and verify if the CS has excess shelter costs for the residence where the CS lives:
Use rent, mortgage payments (principal plus interest), sales or lease purchase agreement, maintenance charges for condominium or cooperative residences, trailer lot rent, taxes, and property insurance. Use a monthly average for expenses which are not incurred monthly, and
Use the supplemental nutritional assistance program heating standard, the non-heating standard (if the spouse has utility expenses other than a phone), the homeless standard, or the phone standard (if the phone is the only utility cost).
For the criteria for each standard, see Chapter 468, Determining MA LTC Eligibility And Payment Towards Cost Of LTC Facility Services, Section 468.35, Choosing A Utility Standard.
NOTE: Do not include an allowance for utilities if utilities are included in rent or condominium fees.
NOTE: Do not include an allowance for utilities when the CS lives in a Personal Care Home/Domiciliary Care Facility (PCH/DCF) or other residential setting. Only the portion of the PCH/DCF monthly fee that is considered rent will be allowed. The PCH/DCF should be able to identify the shelter portion of the PCH/DCF payment.
Subtract the Shelter Standard from the total shelter and utility costs to determine the excess shelter costs.
For the current Shelter Standards, see Chapter 468, Appendix A, Determining Payment Towards the Cost Of LTC Facility Services: Spousal Impoverishment Provisions.
Example: $150 Taxes and Insurance
+536 Heating Utility Standard
$686 Total Shelter Cost
-$552 Shelter Standard
$134 Excess Shelter Costs
Add the Excess Shelter Costs to the Minimum Monthly Maintenance Needs Allowance (MMMNA) in Chapter 468, Appendix A. The total is the CSMMNA (the amount needed by the CS to prevent the CS from becoming impoverished).
NOTE: The CSMMNA cannot exceed the Maximum Monthly Maintenance Needs Allowance in Chapter 468, Appendix A.
Determine the CS’s total countable gross earned and unearned income, including the interest earned by the spousal share of resources. Count the interest generated from the spousal share by the current rate of return for a one-year Certificate of Deposit established by DPW (currently 1.5%).
It is important when calculating the CS’s income to advise the CS of all benefits for which the IS or the CS may be eligible. Both the IS and CS must apply for potential benefits such as SSA, RSDI, pensions, etc.
NOTE: Exclude income listed in Chapter 450, Sections 450.51 and 450.52 (Income Exclusions – Step 2). TANF or GA cash benefits are excluded. Do not exclude SSI benefits. If the spouse in the LTC facility receives income that is excluded and gives that money to the CS, consider that income to be a contribution. Count it as income available to the CS. This does not apply to VA Aid and Attendance benefits. These payments remain excluded as income to the spouse and/or dependent.
Compare the CS’s total gross monthly income to the CSMMNA to determine whether the CS needs additional income to prevent impoverishment.
If the total gross monthly income of the CS is equal to or greater than the CSMMNA, the CS is not entitled to additional protection of income or resources.
If the CS needs additional income to meet the CSMMNA, the CS must first use the IS’s available income to provide the needed income.
The IS’s income considered available to the CS is the IS’s gross monthly income minus the personal needs allowance (currently $45 per month), any income needed to pay medical expenses (Medicare premiums or private insurance premiums) and any Maintenance Allowance for dependents living with the CS.
Allocate enough income from the IS’s available income to meet the CS’s income shortfall.
If the CS still needs additional income to meet his/her CSMMNA, the CS can request resources from the non-protected share of the couple’s resources to generate the additional needed income.
The CAO will notify the applicant that he or she must provide three annuity quotes to identify the non-protected resources amount needed to generate the required income amount.
NOTE: The CS is not required to buy the annuity.
The CAO will use the annuity quote that reflects the least amount of non-protected resources needed to generate the required amount of income.
The Department of Public Welfare and the appellant will enter into a Stipulated Agreement in order for the CS to protect additional resources.
Complete the Stipulated Agreement (PA 1856) when all resources have been allocated to the CS. Have it signed by the CAO representative and the person or the person’s representative.
Complete the Stipulated Agreement (PA 1857) when there are excess resources that must be spent down before the eligibility determination. Have it signed by the CAO representative and the individual or the individual’s representative.
Forward the Proposed Hearing Order and the appropriate Stipulated Agreement to the Bureau of Hearings and Appeals (BHA).
Track the appeal request using code 654 on the MAPPER Tracking System, Department 143.
BHA will:
1. Determine if an additional amount of resources may be protected for the CS
2. Sign the order
3. Send copies of the decision to the IS, CS, their representative and the CAO.
The CAO will, upon receipt from BHA:
1. Carry out the terms of the Stipulated Agreement known as the PAR (Protect Additional Resources) Agreement
2. Make any changes to the case record and to the MAPPER system, if necessary. See Appendix E MAPPER Procedures.
3. Keep in the record the supporting documentation including the Hearing Order, Stipulation, and worksheet used for determining the change
The CAO will use the protected resource amount determined by the Hearing Order when determining eligibility at the time of the MA LTC application.
55 Pa. Code § 178.124(b) 55 Pa. Code § 181.452(d)(2)
An IS may transfer resources to the CS. The transfer of resources to a CS as permitted by the stipulated agreement is not subject to the fair consideration provisions.
NOTE: The CAO will determine if fair consideration was received if either spouse transfers resources to someone else or otherwise disposes of a resource within the look-back period before the MA LTC application. See Section 440.8, Disposition of Assets and Fair Consideration.
At application, the amount transferred plus the countable resources of the CS may not exceed the maximum spousal share.
Example: Mrs. K. is applying for MA and payment of LTC services. She and her husband previously had a resource assessment completed. The spousal share was $25,000. Mr. K now has $16,000 remaining of his $25,000 protected spousal share.
At application for MA LTC, Mrs. K. transferred her joint checking, savings, and mutual funds (a total of $8,000) to her husband by removing her name from all accounts. Mr. K's current resources of $16,000 plus the $8,000 transferred accounts do not exceed the spousal share of $25,000.
Mr. and Mrs. K’s resources must be evaluated to determine if FMV was received for the resources that were disposed of within the look back period.
The IS must transfer resources within 90 calendar days from the issue date the eligibility notice. The transfer may be made directly to the CS or to another individual for the sole benefit of the CS. If the transfer requires court action, the period may be more than 90 days. The IS meets the requirement if the court action starts within the 90 days.
There is an exception if a guardian is being appointed. The transfer period may be extended if the IS or the IS’s representative can show that the appointment and the transfer of the property cannot be completed within 90 days for reasons over which there is no control. The CAO will review each situation case-by-case.
If the IS owns a portion or all the resources protected for the CS, the IS or IS’s representative, including a spouse who is acting as a representative, must sign a statement of intent to transfer resources to the CS before the CAO authorizes MA LTC. See the Certification of Transfer of Resources to Community Spouse (PA 1886) form.
NOTE: If there is no Legal Guardian or Power of Attorney (POA), the spouse or other representative may sign if the IS is competent to make a decision but cannot sign their name.
If the IS or the IS’s representative signs the agreement, the CAO will not consider as available to the CS any resources that are to be protected for the CS and have not been transferred (or court initiated) at the end of the 90-day period.
If the IS does not sign the agreement, the CAO will consider the total resources to be available to the IS when determining eligibility for MA LTC. 55 Pa. Code § 178.125
Updated May 4, 2016 Replacing March 5, 2015