42 U.S.C. § 1396r-5
In determining the eligibility for medical assistance of an institutionalized spouse (as defined in subsection (h)(1)), the provisions of this section supersede any other provision of this subchapter (including sections 1396a(a)(17) and 1396a(f) of this title) which is inconsistent with them.
Any different treatment provided under this section for institutionalized spouses shall not, by reason of paragraph (10) or (17) of section 1396a(a) of this title, require such treatment for other individuals.
Except as this section specifically provides, this section does not apply to-
In the case of any State which is providing medical assistance to its residents under a waiver granted under section 1315 of this title, the Secretary shall require the State to meet the requirements of this section in the same manner as the State would be required to meet such requirement if the State had in effect a plan approved under this subchapter.
This section shall only apply to a State that is one of the 50 States or the District of Columbia.
This section applies to individuals receiving institutional or noninstitutional services under a PACE demonstration waiver program (as defined in section 1396u-4(a)(7) of this title) or under a PACE program under section 1396u-4 or 1395eee of this title.
During any month in which an institutionalized spouse is in the institution, except as provided in paragraph (2), no income of the community spouse shall be deemed available to the institutionalized spouse.
In determining the income of an institutionalized spouse or community spouse for purposes of the post-eligibility income determination described in subsection (d), except as otherwise provided in this section and regardless of any State laws relating to community property or the division of marital property, the following rules apply:
Subject to subparagraphs (C) and (D), in the case of income not from a trust, unless the instrument providing the income otherwise specifically provides-
In the case of a trust-
In the case of income not from a trust in which there is no instrument establishing ownership, subject to subparagraph (D), one-half of the income shall be considered to be available to the institutionalized spouse and one-half to the community spouse.
The rules of subparagraphs (A) and (C) are superseded to the extent that an institutionalized spouse can establish, by a preponderance of the evidence, that the ownership interests in income are other than as provided under such subparagraphs.
There shall be computed (as of the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse)-
At the request of an institutionalized spouse or community spouse, at the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse and upon the receipt of relevant documentation of resources, the State shall promptly assess and document the total value described in subparagraph (A)(i) and shall provide a copy of such assessment and documentation to each spouse and shall retain a copy of the assessment for use under this section. If the request is not part of an application for medical assistance under this subchapter, the State may, at its option as a condition of providing the assessment, require payment of a fee not exceeding the reasonable expenses of providing and documenting the assessment. At the time of providing the copy of the assessment, the State shall include a notice indicating that the spouse will have a right to a fair hearing under subsection (e)(2).
In determining the resources of an institutionalized spouse at the time of application for benefits under this subchapter, regardless of any State laws relating to community property or the division of marital property-
The institutionalized spouse shall not be ineligible by reason of resources determined under paragraph (2) to be available for the cost of care where-
During the continuous period in which an institutionalized spouse is in an institution and after the month in which an institutionalized spouse is determined to be eligible for benefits under this subchapter, no resources of the community spouse shall be deemed available to the institutionalized spouse.
In this section, the term "resources" does not include-
After an institutionalized spouse is determined or redetermined to be eligible for medical assistance, in determining the amount of the spouse's income that is to be applied monthly to payment for the costs of care in the institution, there shall be deducted from the spouse's monthly income the following amounts in the following order:
In subparagraph (C), the term "family member" only includes minor or dependent children, dependent parents, or dependent siblings of the institutionalized or community spouse who are residing with the community spouse.
In this section (except as provided in paragraph (5)), the "community spouse monthly income allowance" for a community spouse is an amount by which-
Each State shall establish a minimum monthly maintenance needs allowance for each community spouse which, subject to subparagraph (C), is equal to or exceeds-
A revision of the official poverty line referred to in clause (i) shall apply to medical assistance furnished during and after the second calendar quarter that begins after the date of publication of the revision.
For purposes of subparagraph (A)(i), the "applicable percent" described in this paragraph, effective as of-
The minimum monthly maintenance needs allowance established under subparagraph (A) may not exceed $1,500 (subject to adjustment under subsections (e) and (g)).
In paragraph (3)(A)(ii), the term "excess shelter allowance" means, for a community spouse, the amount by which the sum of-
exceeds 30 percent of the amount described in paragraph (3)(A)(i), except that, in the case of a condominium or cooperative, for which a maintenance charge is included under subparagraph (A), any allowance under subparagraph (B) shall be reduced to the extent the maintenance charge includes utility expenses.
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 shall be not less than the amount of the monthly income so ordered.
For purposes of this subsection and subsections (c) and (e), a State must consider that all income of the institutionalized spouse that could be made available to a community spouse, in accordance with the calculation of the community spouse monthly income allowance under this subsection, has been made available before the State allocates to the community spouse an amount of resources adequate to provide the difference between the minimum monthly maintenance needs allowance and all income available to the community spouse.
Upon-
each State shall notify both spouses (in the case described in subparagraph (A)) or the spouse making the request (in the case described in subparagraph (B)) of the amount of the community spouse monthly income allowance (described in subsection (d)(1)(B)), of the amount of any family allowances (described in subsection (d)(1)(C)), of the method for computing the amount of the community spouse resources allowance permitted under subsection (f), and of the spouse's right to a fair hearing under this subsection respecting ownership or availability of income or resources, and the determination of the community spouse monthly income or resource allowance.
If either the institutionalized spouse or the community spouse is dissatisfied with a determination of-
such spouse is entitled to a fair hearing described in section 1396a(a)(3) of this title with respect to such determination if an application for benefits under this subchapter has been made on behalf of the institutionalized spouse. Any such hearing respecting the determination of the community spouse resource allowance shall be held within 30 days of the date of the request for the hearing.
If either such 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 in subsection (d)(2)(A), an amount adequate to provide such additional income as is necessary.
If either such spouse establishes that the community spouse resource allowance (in relation to the amount of income generated by such an allowance) is inadequate to raise the community spouse's income to the minimum monthly maintenance needs allowance, there shall be substituted, for the community spouse resource allowance under subsection (f)(2), an amount adequate to provide such a minimum monthly maintenance needs allowance.
An institutionalized spouse may, without regard to section 1396p(c)(1) of this title, transfer an amount equal to the community spouse resource allowance (as defined in paragraph (2)), but only to the extent the resources of the institutionalized spouse are transferred to (or for the sole benefit of) the community spouse. The transfer under the preceding sentence shall be made as soon as practicable after the date of the initial determination of eligibility, taking into account such time as may be necessary to obtain a court order under paragraph (3).
In paragraph (1), the "community spouse resource allowance" for a community spouse is an amount (if any) by which-
exceeds
If a court has entered an order against an institutionalized spouse for the support of the community spouse, section 1396p of this title shall not apply to amounts of resources transferred pursuant to such order for the support of the spouse or a family member (as defined in subsection (d)(1)).
For services furnished during a calendar year after 1989, the dollar amounts specified in subsections (d)(3)(C), (f)(2)(A)(i), and (f)(2)(A)(ii)(II) shall be increased by the same percentage as the percentage increase in the consumer price index for all urban consumers (all items; U.S. city average) between September 1988 and the September before the calendar year involved.
In this section:
but does not include any such individual who is not likely to meet the requirements of subparagraph (A) for at least 30 consecutive days.
42 U.S.C. § 1396r-5
EDITORIAL NOTES
CODIFICATION Pub. L. 110-234 and Pub. L. 110-246 made identical amendments to this section. The amendments by Pub. L. 110-234 were repealed by section 4(a) of Pub. L. 110-246.
PRIOR PROVISIONSA prior section 1924 of act Aug. 14, 1935, was renumbered section 1939 and is classified to section 1396v of this title.
AMENDMENTS2008-Subsec. (d)(4)(B). Pub. L. 110-246, §4002(b)(1)(B), (2) (V), made technical amendment to reference in original act which appears in text as reference to section 2014(e) of title 7. 2006-Subsec. (d)(6). Pub. L. 109-171 added par. (6). 1997-Subsec. (a)(5). Pub. L. 105-33 in heading substituted "under PACE programs" for "from organizations receiving certain waivers" and in text substituted "under a PACE demonstration waiver program (as defined in section 1396u-4(a)(7) of this title) or under a PACE program under section 1396u-4 or 1395eee of this title." for "from any organization receiving a frail elderly demonstration project waiver under section 9412(b) of the Omnibus Budget Reconciliation Act of 1986 or a waiver under section 603(c) of the Social Security Amendments of 1983." 1994-Subsec. (d)(3)(A)(i). Pub. L. 103-252 substituted "section 9902(2)" for "sections 9847 and 9902(2)". 1993-Subsec. (a)(5). Pub. L. 103-66, §13643(c)(1), substituted "1986 or a waiver under section 603(c) of the Social Security Amendments of 1983" for "1986".Subsec. (b)(2)(B)(i). Pub. L. 103-66, §13611(d)(2), substituted "1396p(d) of this title" for "1396a(k) of this title". 1990-Subsec. (a)(5). Pub. L. 101-508, §4744(b)(1), added par. (5).Subsec. (b)(2). Pub. L. 101-508, §4714(a), substituted "for purposes of the post-eligibility income determination described in subsection (d)" for ",after the institutionalized spouse has been determined or redetermined to be eligible for medical assistance". Subsec. (c)(1). Pub. L. 101-508, §4714(c), substituted "the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse" for "the beginning of a continuous period of institutionalization of the institutionalized spouse" in subpars. (A) and (B).Subsec. (f)(1). Pub. L. 101-508, §4714(b), substituted "section 1396p(c)(1)" for "section 1396p". 1989-Subsecs. (b)(2), (d)(1). Pub. L. 101-239 inserted "or redetermined" after "determined". 1988-Subsec. (c)(1)(B). Pub. L. 100-485, §608(d)(16)(A)(i), substituted "will have a right to a fair hearing under subsection (e)(2)" for "has right to a fair hearing under subsection (e)(2)(E) with respect to the determination of the community spouse resource allowance, to provide for an allowance adequate to raise the spouse's income to the minimum monthly maintenance needs allowance".Subsec. (c)(2)(B). Pub. L. 100-485, §608(d)(16)(A)(ii), substituted "resources shall be considered to be available to an institutionalized spouse, but only to the extent that the amount of such resources exceeds" for "resources shall not be considered to be available to an institutionalized spouse, to the extent that the amount of such resources does not exceed".Subsec. (d)(3)(A)(i). Pub. L. 100-485, §608(d)(16)(A)(iii), struck out "nonfarm" before "official poverty line".Subsec. (d)(4). Pub. L. 100-485, §608(d)(16)(A)(iv), substituted "subparagraph (B)" for "subparagraph (C)" in concluding provisions.Subsec. (e)(2)(A). Pub. L. 100-485, §608(d)(16)(A)(v), inserted "if an application for benefits under this subchapter has been made on behalf of the institutionalized spouse" after "with respect to such determination" before period at end of first sentence.Subsec. (f)(1). Pub. L. 100-485, §608(d)(16)(A)(vi), substituted "transfer an amount" for "transfer to the community spouse (or to another for the sole benefit of the community spouse) an amount" and "as soon as practicable" for "as soon as pacticable". Subsec. (f)(3). Pub. L. 100-485, §608(d)(16)(A)(vii), substituted "spouse or a family member" for "spouse of a family member".
STATUTORY NOTES AND RELATED SUBSIDIARIES
EFFECTIVE DATE OF 2008 AMENDMENT Amendment of this section and repeal of Pub. L. 110-234 by Pub. L. 110-246 effective May 22, 2008, the date of enactment of Pub. L. 110-234 except as otherwise provided, see section 4 of Pub. L. 110-246 set out as an Effective Date note under section 8701 of Title 7, Agriculture. Amendment by section 4002(b)(1)(B), (2)(V) of Pub. L. 110-246 effective Oct. 1, 2008, see section 4407 of Pub. L. 110-246 set out as a note under section 1161 of Title 2, The Congress.
EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109-171, title VI, §6013(b), Feb. 8, 2006, 120 Stat. 64, provided that: "The amendment made by subsection (a) [amending this section] shall apply to transfers and allocations made on or after the date of the enactment of this Act [Feb. 8, 2006] by individuals who become institutionalized spouses on or after such date."
EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103-252 effective May 18, 1994, but not applicable to Head Start agencies and other recipients of financial assistance under the Head Start Act (42 U.S.C. 9831 et seq.) until Oct. 1, 1994, see section 127 of Pub. L. 103-252 set out as a note under section 9832 of this title.
EFFECTIVE DATE OF 1993 AMENDMENT Amendment by section 13611(d)(2) of Pub. L. 103-66 applicable, except as otherwise provided, to payments under this subchapter for calendar quarters beginning on or after Oct. 1, 1993, without regard to whether or not final regulations to carry out the amendments by section 13611 of Pub. L. 103-66 have been promulgated by such date, see section 13611(e) of Pub. L. 103-66 set out as a note under section 1396p of this title.
EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101-508, title IV, §4714(d), Nov. 5, 1990, 104 Stat. 1388-192, provided that: "The amendments made [by] this section [amending this section] shall take effect as if included in the enactment of section 303 of the Medicare Catastrophic Coverage Act of 1988 [Pub. L. 100-360]."
EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101-239 applicable as if included in the enactment of section 303 of Pub. L. 100-360 see section 6411(e)(4)(B) of Pub. L. 101-239 set out as a note under section 1396a of this title.
EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100-485 effective as if included in the enactment of the Medicare Catastrophic Coverage Act of 1988, Pub. L. 100-360, see section 608(g)(1) of Pub. L. 100-485 set out as a note under section 704 of this title.
EFFECTIVE DATE Pub. L. 100-360, title III, §303(g), July 1, 1988, 102 Stat. 763, as amended by Pub. L. 100-485, title VI, §608(d) (16)(D), Oct. 13, 1988, 102 Stat. 2418, provided that: "(1)(A) The amendments made by this section [enacting this section and amending sections 1382, 1382b, 1396a, 1396p, 1396r, and 1396s of this title] apply (except as provided in this subsection) to payments under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for calendar quarters beginning on or after September 30, 1989, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date."(B) Section 1924 of the Social Security Act [42 U.S.C. 1396r-5] (as inserted by subsection (a)) shall only apply to institutionalized individuals who begin continuous periods of institutionalization on or after September 30, 1989, except that subsections (b) and (d) of such section (and so much of subsection (e) of such section as relates to such other subsections) shall apply as of such date to individuals institutionalized on or after such date."(2)(A) The amendment made by subsection (b) [amending section 1396p of this title] and section 1902(a)(51)(B) of the Social Security Act [42 U.S.C. 1396a(a)(51)(B)], apply (except as provided in paragraph (5)) to payments under title XIX of the Social Security Act for calendar quarters beginning on or after July 1, 1988, or the date of the enactment of this Act [July 1, 1988], without regard to whether or not final regulations to carry out such amendments have been promulgated by such date."(B) Section 1917(c) of the Social Security Act [42 U.S.C. 1396p(c)], as amended by subsection (b) of this section, shall apply to resources disposed of on or after July 1, 1988, except that such section shall not apply with respect to inter-spousal transfers occurring before October 1, 1989. "(C) Notwithstanding subparagraphs (A) and (B), a State may continue to apply the policies contained in the State plan as of June 30, 1988, with respect to resources disposed of before July 1, 1988, and the laws and policies established by the State as of June 30, 1988, or provided for before July 1, 1988, shall continue to apply through September 30, 1989, (and may, at a State's option continue after such date) to inter-spousal transfers occurring before October 1, 1989. "(3) The amendments made by subsection (c) [amending sections 1382 and 1382b of this title] shall apply to transfers occurring on or after July 1, 1988, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date."(4) The amendment made by subsection (d) [amending section 1396a of this title] is effective on and after April 8, 1988. The final rule of the Health Care Financing Administration published on February 8, 1988 (53 Federal Register 3586) is superseded to the extent inconsistent with the amendment made by subsection (d)."(5) In the case of a State plan for medical assistance under title XIX of the Social Security Act which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendments made by this section (other than paragraphs (1) and (5) of subsection (e) [amending section 1396a of this title]), the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature."(6) The amendments made by paragraphs (1) and (5) of subsection (e) [amending section 1396a of this title] shall apply to medical assistance furnished on or after October 1, 1982."
RULE OF CONSTRUCTION Pub. L. 116-16, §2(b), Apr. 18, 2019, 133 Stat. 852, provided that: "(1) PROTECTING STATE SPOUSAL INCOME AND ASSET DISREGARD FLEXIBILITY UNDER WAIVERS AND PLAN AMENDMENTS.-Nothing in section 2404 of Public Law 111-148 (42 U.S.C. 1396r-5 note) or section 1924 of the Social Security Act (42 U.S.C. 1396r-5) shall be construed as prohibiting a State from disregarding an individual's spousal income and assets under a State waiver or plan amendment described in paragraph (2) for purposes of making determinations of eligibility for home and community-based services or home and community-based attendant services and supports under such waiver or plan amendment. "(2) STATE WAIVER OR PLAN AMENDMENT DESCRIBED.-A State waiver or plan amendment described in this paragraph is any of the following: "(A) A waiver or plan amendment to provide medical assistance for home and community-based services under a waiver or plan amendment under subsection (c), (d), or (i) of section 1915 of the Social Security Act (42 U.S.C. 1396n) or under section 1115 of such Act (42 U.S.C. 1315)."(B) A plan amendment to provide medical assistance for home and community-based services for individuals by reason of being determined eligible under section 1902(a)(10)(C) of such Act (42 U.S.C. 1396a(a)(10)(C)) or by reason of section 1902(f) of such Act (42 U.S.C. 1396a(f)) or otherwise on the basis of a reduction of income based on costs incurred for medical or other remedial care under which the State disregarded the income and assets of the individual's spouse in determining the initial and ongoing financial eligibility of an individual for such services in place of the spousal impoverishment provisions applied under section 1924 of such Act (42 U.S.C. 1396r-5). "(C) A plan amendment to provide medical assistance for home and community-based attendant services and supports under section 1915(k) of such Act (42 U.S.C. 1396n(k))."Similar provisions were contained in the following prior act: Pub. L. 116-3, §3(b), Jan. 24, 2019, 133 Stat. 7.[For additional provisions relating to construction of this section, see, section 204(b) Pub. L. 116-39 of Pub. L. 116-94, section 3812(b) of Pub. L. 116-136, section 2302(b) of Pub. L. 116-159 and section 1105(b) of Pub. L. 116-215 set out as notes under section 1396a of this title.]
PROTECTION FOR RECIPIENTS OF HOME AND COMMUNITY-BASED SERVICES AGAINST SPOUSAL IMPOVERISHMENT Pub. L. 111-148, title II, §24042404,, 124 Stat. 305, as amended by Pub. L. 116-3, §3(a), Jan. 24, 2019, 133 Stat. 7; Pub. L. 116-16, §2(a), Apr. 18, 2019, 133 Stat. 852; Pub. L. 116-39, §3(a), Aug. 6, 2019, 133 Stat. 1061; Pub. L. 116-94, div. N, title I, §204(a), Dec. 20, 2019, 133 Stat. 3111; Pub. L. 116-136, div. A, title III, §3812(a), Mar. 27, 2020, 134 Stat. 429; Pub. L. 116-159, div. C, title III, §2302(a), Oct. 1, 2020, 134 Stat. 731; Pub. L. 116-215, div. B, title I, §1105(a), Dec. 11, 2020, 134 Stat. 1043; Pub. L. 116-260 div. CC, title II, §205(a), Dec. 27, 2020, 134 Stat. 2983; Pub. L. 117-328 div. FF, title V, §5115, Dec. 29, 2022, 136 Stat. 5941, provided that: "During the period beginning on January 1, 2014, and ending on September 30, 2027, section 1924(h)(1)(A) of the Social Security Act (42 U.S.C. 1396r-5(h)(1)(A)) shall be applied as though 'is eligible for medical assistance for home and community-based services provided under subsection (c), (d), or (i) of section 1915 [42 U.S.C. 1396n], under a waiver approved under section 1115 [42 U.S.C. 1315], or who is eligible for such medical assistance by reason of being determined eligible under section 1902(a)(10)(C) [42 U.S.C. 1396a(a)(10)(C)] or by reason of section 1902(f) [42 U.S.C. 1396a(f)] or otherwise on the basis of a reduction of income based on costs incurred for medical or other remedial care, or who is eligible for medical assistance for home and community-based attendant services and supports under section 1915(k) [42 U.S.C. 1396n(k)] ' were substituted in such section for '(at the option of the State) is described in section 1902(a)(10)(A)(ii)(VI) [42 U.S.C. 1396a(a)(10)(A)(ii)(VI)] '." [For provisions relating to construction of section 2404 of Pub. L. 111-148 set out above, see, section 204(b) Pub. L. 116-39 of Pub. L. 116-94, section 3812(b) of Pub. L. 116-136, section 2302(b) of Pub. L. 116-159, section 1105(b) of Pub. L. 116-215 and section 205(b) of Pub. L. 116-260 set out as notes under section 1396a of this title.]
- Secretary
- The term "Secretary" means the Secretary of Housing and Urban Development.1See References in Text note below.
- person
- The term "person" means an individual, a trust or estate, a partnership, or a corporation.
- project
- The terms "federally assisted housing" and "project" mean-(A) a public housing project (as such term is defined in section 3(b) of the United States Housing Act of 1937 [42 U.S.C. 1437a(b)] );(B) housing for which project-based assistance is provided under section 8 of the United States Housing Act of 1937 [42 U.S.C. 1437f] ;(C) housing that is assisted under section 1701q of title 12;(D) housing that is assisted under section 1701q of title 12, as such section existed before November 28, 1990;(E) housing financed by a loan or mortgage insured under section 1715l(d)(3) of title 12 that bears interest at a rate determined under the proviso of section 1715l(d)(5) of title 12;(F) housing insured, assisted, or held by the Secretary or a State or State agency under section 1715z-1 of title 12;(G) housing constructed or substantially rehabilitated pursuant to assistance provided under section 8(b)(2) of the United States Housing Act of 1937 [42 U.S.C. 1437f(b)(2)], as in effect before October 1, 1983, that is assisted under a contract for assistance under such section; and(H) housing that is assisted under section 80131 of this title.