S.B. 174

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MEDICAL ASSISTANCE ACT - SPOUSAL IMPOVERISHMENT
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Scott N. Howell
5 AN ACT RELATING TO HEALTH AND HUMAN SERVICES; SETTING FORTH IN STATE
6 CODE PROVISIONS REGARDING ELIGIBILITY OF INSTITUTIONALIZED SPOUSES
7 TO RECEIVE MEDICAL ASSISTANCE AND PROTECTING THE INCOME OF THE
8 NONINSTUTIONALIZED SPOUSE IN DETERMINING THIS ELIGIBILITY.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 ENACTS:
11 26-18-3.6, Utah Code Annotated 1953
12 Be it enacted by the Legislature of the state of Utah:
13 Section 1. Section 26-18-3.6 is enacted to read:
14 26-18-3.6. Income and resources from institutionalized spouses.
15 (1) As used in this section:
16 (a) "Community spouse" means the spouse of an institutionalized spouse.
17 (b) (i) "Community spouse monthly income allowance" means an amount by which the
18 minimum monthly maintenance needs allowance for the spouse exceeds the amount of monthly
19 income otherwise available to the community spouse, determined without regard to the allowance,
20 except as provided in Subsection (1)(b)(ii).
21 (ii) If a court has entered an order against an institutionalized spouse for monthly income
22 for the support of the community spouse, the community spouse monthly income allowance for
23 the spouse may not be less than the amount of the monthly income so ordered.
24 (c) "Community spouse resource allowance" is an amount by which the greatest of the
25 following exceeds the amount of the resources otherwise available to the community spouse:
26 (i) $15,348;
27 (ii) the lesser of the spousal share computed under Subsection (4) or $76,740;

1 (iii) the amount established in a hearing held under Subsection (11); or
2 (iv) the amount transferred by court order under Subsection (11)(c).
3 (d) "Excess shelter allowance" for a community spouse means the amount by which the
4 sum of the spouse's expense for rent or mortgage payment, taxes, and insurance, and in the case
5 of condominium or cooperative, required maintenance charge, for the community spouse's
6 principal residence and the spouses actual expenses for electricity, natural gas, and water utilities
7 exceeds 30% of the amount described in Subsection (9).
8 (e) "Family member" means a minor dependent child, dependent parents, or dependent
9 sibling of the institutionalized spouse or community spouse who are residing with the community
10 spouse.
11 (f) (i) "Institutionalized spouse" means a person who is residing in a nursing facility and
12 is married to a spouse who is not in a nursing facility.
13 (ii) An "institutionalized spouse" does not include a person who is not likely to reside in
14 a nursing facility for at least 30 consecutive days.
15 (g) "Nursing care facility" is defined in Section 26-21-2.
16 (2) The division shall comply with this section when determining eligibility for medical
17 assistance for an institutionalized spouse.
18 (3) For services furnished during a calendar year beginning on or after January 1, 1999,
19 the dollar amounts specified in Subsections (1)(c)(i), (1)(c)(ii), and (10)(b) shall be increased by
20 the division by the same percentage as the percentage increase in the consumer price index for all
21 urban consumers between September 1997 and the September before the calendar year involved.
22 (4) The division shall compute, as of the beginning of the first continuous period of
23 institutionalization of the institutionalized spouse:
24 (a) the total value of the resources to the extent either the institutionalized spouse or the
25 community spouse has an ownership interest; and
26 (b) a spousal share, which is 1/2 of the resources described in Subsection (4)(a).
27 (5) At the request of an institutionalized spouse or a community spouse, at the beginning
28 of the first continuous period of institutionalization of the institutionalized spouse and upon the
29 receipt of relevant documentation of resources, the division shall promptly assess and document
30 the total value described in Subsection (4)(a) and shall provide a copy of that assessment and
31 documentation to each spouse and shall retain a copy of the assessment. When the division

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1 provides a copy of the assessment, it shall include a notice stating that the spouse may request a
2 hearing under Subsection (11).
3 (6) When determining eligibility for medical assistance under this chapter:
4 (a) Except as provided in Subsection (6)(b), all the resources held by either the
5 institutionalized spouse, community spouse, or both, are considered to be available to the
6 institutionalized spouse.
7 (b) Resources are considered to be available to the institutionalized spouse only to the
8 extent that the amount of those resources exceeds the amounts specified in Subsections (1)(c)(i)
9 through (iv) at the time of application for medical assistance under this chapter.
10 (7) The division may not find an institutionalized spouse to be ineligible for medical
11 assistance by reason of resources determined under Subsection (5) to be available for the cost of
12 care when:
13 (a) the institutionalized spouse has assigned to the state any rights to support from the
14 community spouse;
15 (b) (i) except as provided in Subsection (7)(b)(ii), the institutionalized spouse lacks the
16 ability to execute an assignment due to physical or mental impairment;
17 (ii) Subsection (7)(b)(i) does not prevent the division from seeking a court order seeking
18 an assignment of support; or
19 (c) the division determines that denial of medical assistance would cause an undue burden.
20 (8) During the continuous period in which an institutionalized spouse is in an institution
21 and after the month in which an institutionalized spouse is eligible for medical assistance, the
22 resources of the community spouse may not be considered to be available to the institutionalized
23 spouse.
24 (9) When an institutionalized spouse is determined to be eligible for medical assistance,
25 in determining the amount of the spouse's income that is to be applied monthly for the cost of care
26 in the nursing care facility, the division shall deduct from the spouse's monthly income the
27 following amounts in the following order:
28 (a) a personal needs allowance, the amount of which is determined by the division;
29 (b) a community spouse monthly income allowance, but only to the extent that the income
30 of the institutionalized spouse is made available to, or for the benefit of, the community spouse;
31 (c) a family allowance for each family member, equal to at least 1/3 of the amount that he

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1 amount described in Subsection (10)(a)(i) exceeds the amount of monthly income of that family
2 member; and
3 (d) amounts for incurred expenses for the medical or remedial care for the institutionalized
4 spouse.
5 (10) (a) Except as provided in Subsection (10)(b), the division shall establish a minimum
6 monthly maintenance needs allowance for each community spouse which is not less than the sum
7 of:
8 (i) 150% of the current poverty guideline for a two-person family unit that applies to this
9 state as established by the United States Department of Health and Human Services; and
10 (ii) an excess shelter allowance.
11 (b) The amount provided in Subsection (10)(a) may not exceed $1,918, unless a court
12 order establishes a higher amount.
13 (11) (a) An institutionalized spouse or a community spouse may request a hearing with
14 respect to the determinations described in Subsections (11)(e)(i) through (v) if an application for
15 medical assistance has been made on behalf of the institutionalized spouse.
16 (b) A hearing under this subsection regarding the community spouse resource allowance
17 shall be held by the division within 30 days from the date of the request for the hearing.
18 (c) If either spouse establishes that the community spouse needs income, above the level
19 otherwise provide by the minimum monthly maintenance needs allowance, due to exceptional
20 circumstances resulting in significant financial duress, there shall be substituted, for the minimum
21 monthly maintenance needs allowance provided under Subsection (10), an amount adequate to
22 provide additional income as is necessary.
23 (d) If either spouse establishes that the community spouse resource allowance, in relation
24 to the amount of income generated by the allowance is inadequate to raise the community spouse's
25 income to the minimum monthly maintenance needs allowance, there shall be substituted, for the
26 community spouse resource allowance an amount adequate to provide a minimum monthly
27 maintenance needs allowance.
28 (e) A hearing may be held under this subsection if either the institutionalized spouse or
29 community spouse is dissatisfied with a determination of:
30 (i) the community spouse monthly income allowance;
31 (ii) the amount of monthly income otherwise available to the community spouse;

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1 (iii) the computation of the spousal share of resources under Subsection (4);
2 (iv) the attribution of resources under Subsection (6); or
3 (v) the determination of the community spouse resource allocation.
4 (12) (a) An institutionalized spouse may transfer an amount equal to the community
5 spouse resource allowance, but only to the extent the resources of the institutionalized spouse are
6 transferred to or for the sole benefit of the community spouse.
7 (b) The transfer under Subsection (12)(a) shall be made as soon as practicable after the
8 date of the initial determination of eligibility, taking into account the time necessary to obtain a
9 court order under Subsection (12)(c).
10 (c) Title 26, Chapter 19, Medical Benefits Recovery Act, does not apply if a court has
11 entered an order against an institutionalized spouse for the support of the community spouse.




Legislative Review Note
as of 2-10-97 2:49 PM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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