S.B. 174 Enrolled

MEDICAL ASSISTANCE ACT - SPOUSAL IMPOVERISHMENT
1997 GENERAL SESSION
STATE OF UTAH
Sponsor: Scott N. Howell
AN ACT RELATING TO HEALTH AND HUMAN SERVICES; SETTING FORTH IN STATE
CODE PROVISIONS REGARDING ELIGIBILITY OF INSTITUTIONALIZED
SPOUSES TO RECEIVE MEDICAL ASSISTANCE AND PROTECTING THE
INCOME OF THE NONINSTITUTIONALIZED SPOUSE IN DETERMINING THIS
ELIGIBILITY.
This act affects sections of Utah Code Annotated 1953 as follows:
ENACTS:
26-18-3.6, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 26-18-3.6 is enacted to read:
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 the
minimum monthly maintenance needs allowance for the spouse exceeds the amount of monthly
income otherwise available to the community spouse, determined without regard to the allowance,
except as provided in Subsection (1)(b)(ii).
(ii) If a court has entered an order against an institutionalized spouse for monthly income
for the support of the community spouse, the community spouse monthly income allowance for
the 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 the
following 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 the sum
of the spouse's expense for rent or mortgage payment, taxes, and insurance, and in the case of
condominium or cooperative, required maintenance charge, for the community spouse's principal
residence and the spouse's actual expenses for electricity, natural gas, and water utilities or, at the
discretion of the department, the federal food stamp standard utility allowance, exceeds 30% of the
amount described in Subsection (9).
(e) "Family member" means a minor dependent child, dependent parents, or dependent
sibling of the institutionalized spouse or community spouse who are residing with the community
spouse.
(f) (i) "Institutionalized spouse" means a person who is residing in a nursing facility and is
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 a
nursing 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 medical
assistance 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 by the
division by the amount as determined annually by the federal Health Care Financing Administration.
(4) The division shall compute, as of the beginning of the first continuous period of
institutionalization of the institutionalized spouse:
(a) the total value of the resources to the extent either the institutionalized spouse or the
community 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 beginning of
the first continuous period of institutionalization of the institutionalized spouse and upon the receipt
of relevant documentation of resources, the division shall promptly assess and document the total

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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 division provides a copy of the
assessment, it shall include a notice stating that the spouse may request a hearing 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 the
institutionalized spouse, community spouse, or both, are considered to be available to the
institutionalized spouse.
(b) Resources are considered to be available to the institutionalized spouse only to the extent
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 medical
assistance by reason of resources determined under Subsection (5) to be available for the cost of care
when:
(a) the institutionalized spouse has assigned to the state any rights to support from the
community spouse;
(b) (i) except as provided in Subsection (7)(b)(ii), the institutionalized spouse lacks the
ability 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 seeking an
assignment of support; or
(c) the division determines that denial of medical assistance would cause an undue burden.
(8) During the continuous period in which an institutionalized spouse is in an institution and
after the month in which an institutionalized spouse is eligible for medical assistance, the resources
of the community spouse may not be considered to be available to the institutionalized spouse.
(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 care in
the nursing care facility, the division shall deduct from the spouse's monthly income the following
amounts in the following order:

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(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 the income
of the institutionalized spouse is made available to, or for the benefit of, the community spouse;
(c) a family allowance for each family member, equal to at least 1/3 of the amount that the
amount described in Subsection (10)(a)(i) exceeds the amount of monthly income of that family
member; and
(d) amounts for incurred expenses for the medical or remedial care for the institutionalized
spouse.
(10) (a) Except as provided in Subsection (10)(b), the division shall establish a minimum
monthly maintenance needs allowance for each community spouse which is not less than the sum
of:
(i) 150% of the current poverty guideline for a two-person family unit that applies to this
state 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 with
respect to the determinations described in Subsections (11)(e)(i) through (v) if an application for
medical assistance has been made on behalf of the institutionalized spouse.
(b) A hearing under this subsection regarding the community spouse resource allowance
shall 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 level
otherwise provided by the minimum monthly maintenance needs allowance, due to exceptional
circumstances resulting in significant financial duress, there shall be substituted, for the minimum
monthly maintenance needs allowance provided under Subsection (10), an amount adequate to
provide additional income as is necessary.
(d) If either spouse establishes that the community spouse resource allowance, in relation
to the amount of income generated by the allowance is inadequate to raise the community spouse's

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income to the minimum monthly maintenance needs allowance, there shall be substituted, for the
community spouse resource allowance, an amount adequate to provide a minimum monthly
maintenance needs allowance.
(e) A hearing may be held under this subsection if either the institutionalized spouse or
community 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 community spouse
resource allowance, but only to the extent the resources of the institutionalized spouse are transferred
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 the date
of the initial determination of eligibility, taking into account the time necessary to obtain a court
order under Subsection (12)(c).
(c) Title 26, Chapter 19, Medical Benefits Recovery Act, does not apply if a court has
entered an order against an institutionalized spouse for the support of the community spouse.

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