Medicaid, Nursing Home Care, and Spousal Responsibility: For

Medicaid, Nursing Home Care, and

Spousal Responsibility: For Richer or

Poorer, in Sickness and Health?

John L. Saxon

is Elder Law Bulletin, written primarily for district and superior court judges, clerks and as-

sistant clerks of superior court, attorneys who practice elder law, attorneys and employees who

work for state or county social services or aging agencies, and state policymakers, discusses the

often-confusing interplay between North Carolina’s laws regarding spousal support and respon-

sibility and the provisions of the federal Medicaid statute that apply to income and assets of a

married couple when one spouse is a nursing home patient and applies for Medicaid payment

for nursing home care while the other spouse continues to live in the community.

Paying for Nursing Home Care: The Challenge for Elderly and

Disabled Patients, Their Spouses and Families, and Taxpayers

Although most elderly or disabled North Carolinians who need long-term care live in their own

homes or with others in the community

and receive care, if needed, from family members or

through home- and community-based programs,

many elderly or disabled persons with severe

and chronic health care needs require skilled nursing care in a licensed nursing facility (nursing

home).

John L. Saxon is a Professor of Public Law and Government with the School of Government at e Uni-

versity of North Carolina at Chapel Hill. He may be contacted by telephone at 919.966.4289 or by

e-mail at sa[email protected]nc.edu.

1. Fewer than 10 percent of all persons aged seventy-ve years or older live in nursing homes. Of those

aged seventy-ve or older who live in the community, almost half live with their spouses, more than

a third live alone, and almost all of the remainder live with other relatives. U.S. Bureau of the Census,

65+ In the United States: 2005 (Current Population Reports, P23-209, Dec. 2005), www.census.gov/

prod/2006pubs/p23-209.pdf (last visited June 11, 2009).

2. Approximately 80 percent of persons who are aged seventy-ve to eighty-four years and need long-

term care and 70 percent of persons with long-term care needs who are aged eighty-ve years or older

live in the community rather than in nursing homes. U.S. Bureau of the Census, 65+ In the United States:

2005 (Current Population Reports, P23-209, Dec. 2005), www.census.gov/prod/2006pubs/p23-209.pdf

(last visited June 11, 2009).

3. Approximately 38,000 elderly and disabled North Carolinians are patients in nursing homes in the

state. Email from Samuel B. Clark, Director of Finance, North Carolina Health Care Facilities Association

NUMBER 8 | SEPTEMBER 2009ELDER LAW BULLETIN

2 Elder Law Bulletin

While skilled nursing care is necessary for some elderly and disabled persons, it is expensive—

for those individuals, for their families, and for the public. e average cost of nursing home

care in North Carolina currently ranges from approximately $153.42 to $197.26 per day (or

$59,000 to $72,000 per year).

In 2007 spending for nursing home care in the United States

totaled approximately $131.3 billion and accounted for approximately 6 percent of total health

care spending.

Some elderly nursing home patients or their families are able to pay all or part of the cost of

the nursing home care they need.

Few elderly or disabled individuals or their families, however,

have sucient income or assets to pay the cost of extended nursing home care.

And, in the

to John L. Saxon, June 19, 2009. ere are approximately 422 licensed nursing facilities in North Caro-

lina with a capacity of approximately 43,770 patients. Id. In 2007 approximately 1.8 million Americans

lived in skilled nursing facilities. U.S. Census Bureau, 2007 American Community Survey, Table S2601B,

http://factnder.census.gov (last visited June 10, 2009). Approximately 10 percent of men aged eighty-

ve years or older and 20 percent of women aged eighty-ve or older live in nursing homes, and there is

an approximate 40 percent probability that a person who is aged sixty-ve years or older will be admit-

ted to a nursing home at some point during the remainder of his or her life. U.S. Bureau of the Census,

65+ In the United States: 2005 (Current Population Reports, P23-209, Dec. 2005), www.census.gov/

prod/2006pubs/p23-209.pdf (last visited June 11, 2009). “e aging of the baby boom generation and the

projected substantial increase in the size of the older population, particularly those above age eighty-ve,

is expected to result in an unprecedented surge in demand for long-term care to the elderly over the next

few decades. Although informal caregivers remain the primary source of assistance to frail elderly . . . ,

formal long-term care arrangements are critical, particularly to severely disabled elderly. Formal long-

term care is provided by a variety of institutions and arrangements, including home health care, assisted

living facilities, and residential nursing home facilities. Among these, nursing home care has a unique

importance because it generally caters to severely disabled elderly who suer from chronic long-term dis-

abilities associated with old age and require extensive medical assistance as well as assistance with their

basic daily needs.” Claire Noel-Miller, “Adult Children and the Risk of Nursing Home Admission Follow-

ing Spousal Loss,” http://paa2009.princeton.edu/download.aspx?submissionId=90547 (last visited June

10, 2009).

4. Genworth Financial, “Cost of Long Term Care Across the Nation,” www.genworth.com/content/

products/long_term_care/long_term_care/cost_of_care.html (last visited June 9, 2009).

5. Claire Noel-Miller, “Adult Children and the Risk of Nursing Home Admission Following Spou-

sal Loss,” http://paa2009.princeton.edu/download.aspx?submissionId=90547 (last visited June 10,

2009). Centers for Medicare and Medicaid Services, “National Health Expenditures: 2007 Highlights,”

www.cms.hhs.gov/NationalHealthExpendData/downloads/highlights.pdf (last visited June 10, 2009);

Centers for Medicare and Medicaid Services, “National Health Expenditure Data,” www.cms.hhs.gov/

NationalHealthExpendData/02_NationalHealthAccountsHistorical.asp (last visited June 10, 2009).

6. Ellen O’Brien, “Medicaid’s Coverage of Nursing Home Costs: Asset Shelter for the Wealthy or

Essential Safety Net?” Georgetown University Long-Term Care Financing Project Issue Brief, May 2005,

http://ltc.georgetown.edu/pdfs/nursinghomecosts.pdf (last visited June 9, 2009), citing Brenda Spillman

and Peter Kemper, “Lifetime Patterns of Payment for Nursing Home Care” Medical Care 33(3): 280–96

(1995). According to that study, 44 percent of elderly nursing home patients paid for their care from

private funds only, while another 16 percent began as private payers before applying for Medicaid. In

2007 nursing home patients or their families paid more than one-fourth of the total cost of nursing home

care ($35.3 billion). Centers for Medicare and Medicaid Services, “National Health Expenditure Data,”

www.cms.hhs.gov/NationalHealthExpendData/02_NationalHealthAccountsHistorical.asp (last visited

June 10, 2009).

7. Most elderly or disabled persons who need nursing home care have limited incomes and assets. e

per capita annual income of nursing home patients is approximately $12,000. U.S. Census Bureau, 2007

Medicaid, Nursing Home Care, and Spousal Responsibility 3

past, paying the cost of care for a husband or wife who was admitted to a nursing home could

impoverish the patient’s spouse who continued to live in the community.

Many elderly or disabled persons who need nursing home care, therefore, rely on other

sources of assistance or payment for nursing home care, including long-term care insurance,

Medicare, and Medicaid.

Medicaid Eligibility for Nursing Home Care

Medicaid is a public assistance program that pays for health care for the poor, including elderly

or disabled persons with limited nancial resources.

In 2007 state Medicaid programs paid $54.8 billion, or more than 40 percent, of the total

cost of nursing home care in the United States, and more than half of all nursing home patients

received Medicaid assistance with respect to their nursing care.

North Carolina’s Medicaid

American Community Survey, Table S2601B, http://factnder.census.gov ( last visited June 10, 2009).

Excluding home equity, the median net worth of elderly households is approximately $24,000 and only 5

percent of elderly households have assets (excluding home equity) of more than $300,000. Ellen O’Brien,

“Medicaid’s Coverage of Nursing Home Costs: Asset Shelter for the Wealthy or Essential Safety Net?”

Georgetown University Long-Term Care Financing Project Issue Brief, May 2005, http://ltc.georgetown

.edu/pdfs/nursinghomecosts.pdf (last visited June 9, 2009). Elderly individuals who are in poor health or

have functional impairments that require long-term care “have even more limited nancial resources

than the non-disabled elderly and those in good health.” Id.

8. Most nursing home patients are widowed or unmarried. Approximately one-fth of nursing home

patients in the United States, however, are married. Many of those who are widowed or unmarried,

however, were married at the time they were admitted to skilled nursing care. U.S. Census Bureau, 2007

American Community Survey, Table S2601B, http://factnder.census.gov (last visited June 10, 2009).

More than half of all nursing home patients are widowed, about one in six was never married, and about

one in nine is divorced. Id.

9. In 2007 long-term care insurance payments accounted for less than 8 percent of the total cost of

nursing home care ($9.8 billion), and Medicare payments funded approximately 18 percent of the total

cost of nursing home care ($23.2 billion). Centers for Medicare and Medicaid Services, “National Health

Expenditure Data,” www.cms.hhs.gov/NationalHealthExpendData/02_NationalHealthAccounts

Historical.asp (last visited June 10, 2009). Medicare is a federal health insurance program for elderly and

disabled persons who are eligible for Social Security retirement, disability, or survivors’ benets. Medi-

care covers up to 100 days of skilled nursing care in a Medicare-approved skilled nursing facility when

a beneciary enters a nursing home within thirty days of a hospitalization of at least three days for the

same medical condition and meets other Medicare requirements. Medicare pays the full cost of nurs-

ing care for the rst twenty days. After twenty days, Medicare patients are required to pay a copayment

($133.50 per day in 2009) for their nursing care.

10. e Medicaid program was created in 1965 and is funded jointly by the federal government and

each participating state. North Carolina’s Medicaid program is summarized in John L. Saxon, Social Ser-

vices in North Carolina (Chapel Hill: UNC School of Government, 2008), 183–85. Additional informa-

tion about North Carolina’s Medicaid program is available on the state Division of Medical Assistance’s

website, www.dhhs.state.nc.us/dma (last visited June 10, 2009), and in the division’s annual report, www

.dhhs.state.nc.us/dma/2007report/2007report.pdf (last visited June 10, 2009).

11. Centers for Medicare and Medicaid Services, “National Health Expenditure Data,” www.cms.hhs

.gov/NationalHealthExpendData/02_NationalHealthAccountsHistorical.asp (last visited June 10, 2009);

Center on Budget and Policy Priorities, “Policy Basics: Introduction to Medicaid,” www.cbpp.org (last

visited June 9, 2009). Approximately two-thirds of all nursing home patients in North Carolina receive

4 Elder Law Bulletin

program spent approximately $2.9 billion for long-term care (approximately one-third of total

Medicaid spending) in state scal year 2007.

Of that amount, the state Medicaid program paid

approximately $1.06 billion for nursing home care.

To qualify for Medicaid coverage of nursing home care, a nursing home patient’s countable

resources must be less than the Medicaid resource limit, and the patient’s income must be less

than the special Medicaid income limit for nursing home patients.

Medicaid Resource Limits for Nursing Home Patients

In general a married nursing home patient is not nancially eligible for Medicaid payment for

nursing home care if the value of his or her “countable” resources exceeds $2,000.

Countable

resources are assets that (1) a Medicaid applicant or recipient owns (individually or jointly with

others), (2) are available for his or her support, and (3) are not excluded under federal and state

law or rules in determining his or her eligibility for Medicaid.

Countable resources, however,

assistance from the state Medicaid program with respect to the cost of their nursing home care. Email

from Samuel B. Clark, Director of Finance, North Carolina Health Care Facilities Association to John L.

Saxon, June 19, 2009.

12. North Carolina Division of Medical Assistance, “Medicaid in North Carolina: Annual Report,

State Fiscal Year 2007,” www.dhhs.state.nc.us/dma/2007report/2007report.pdf (last visited June 10,

2009). Long-term care includes nursing care in nursing homes, home health care, private duty nursing,

home infusion services, hospice care, durable medical equipment, adult care home and personal care ser-

vices, and health care provided through the state’s Medicaid community alternatives programs. In state

scal year 2007, North Carolina’s community alternatives program for disabled adults (a program that

allows disabled adults to receive home- and community-based services rather than being admitted to a

nursing home) served approximately 11,000 persons each month and cost approximately $256 million (or

not quite $2,000 per recipient per month).

13. North Carolina Division of Medical Assistance, “Medicaid in North Carolina: Annual Report,

State Fiscal Year 2007,” www.dhhs.state.nc.us/dma/2007report/2007report.pdf (last visited June 10,

2009). According to the state Division of Medical Assistance, approximately 42,721 to 44,843 Medicaid

recipients received Medicaid payment for nursing home care during state scal year 2007, and, based

on this gure, the average Medicaid nursing home payment would have been approximately $2,000 per

patient per month. Id.

14. To qualify for Medicaid, the patient also must satisfy Medicaid’s nonnancial eligibility require-

ments and meet the state’s standards regarding need for institutional nursing care. Medicaid eligibility

for aged, blind, and disabled persons in North Carolina is discussed in more detail in Douglas S. Sea,

“Medicaid for the Aged, Blind, and Disabled in North Carolina,” www.healthlaw.org/search/item.173192

(last visited June 11, 2009).

15. e $2,000 limit also applies to unmarried nursing home patients. e Medicaid resource limit is

$3,000 (for a nursing home patient and the patient’s spouse) rather than $2,000, if a nursing home patient

is married and the patient’s spouse lives with the patient in the same room and is also applying for or

receiving Medicaid for nursing home care.

16. Countable resources generally include bank accounts, investments, cars, boats, life insurance, re-

vocable trust funds, certain irrevocable trusts and annuities, and other personal or real property (unless

the property or asset is designated as a noncountable asset). Countable resources, however, may not be

counted unless they are, in fact, available to the patient (i.e., the patient, or someone acting on his or her

behalf, has the legal and practical ability to convert the asset to cash to pay for his or her care). And, some

assets are not counted in determining an individual’s Medicaid eligibility. For example, the equity value

of property that is (or was) used by the patient as his or her home is not counted as long as the patient’s

spouse or minor or disabled child is living in the home, a dependent relative of the patient is living in the

home, or the patient subjectively intends to return home (regardless of whether there is medical

Medicaid, Nursing Home Care, and Spousal Responsibility 5

also include assets that are owned by the spouse of a nursing home patient who applies for

Medicaid for nursing home care unless (a) the assets are protected under Medicaid’s community

spouse rules (discussed below) or otherwise excluded under federal and state law or rules in

determining an individual’s eligibility for Medicaid, (b) the patient and his or her spouse were

separated for at least twelve months before the patient was admitted to a nursing home, or

the patient.

If a nursing home patient’s countable resources (including, to the extent allowed under

federal law, the countable resources owned by his or her spouse) exceed the Medicaid resource

limit, the patient may qualify for Medicaid if the patient (and, if applicable, his or her spouse)

“spends down” the patient’s (or couple’s) “excess” countable resources on medical care or other

expenses.

evidence to support that intent). If a person applies for Medicaid coverage of nursing home care on or

after November 1, 2007, Medicaid rules generally impose a $500,000 cap on home equity that is excluded

in determining Medicaid eligibility for nursing home services unless the patient’s spouse or a child of the

patient who is disabled or under the age of twenty-one years lives in the home.

17. Like other states, North Carolina recognizes the common law duty of spouses to support each

other. And, in recognition of this general duty of spousal support, the federal Medicaid statute generally

allows an individual’s income and resources to be deemed available to his or her spouse in determining

his or her spouse’s eligibility for Medicaid. See 42 U.S.C. § 1396a(a)(17)(D). See also Herweg v. Ray, 455

U.S. 265, 102 S. Ct. 1059 (1982) and Schweiker v. Gray Panthers, 453 U.S. 34, 101 S. Ct. 2633 (1981) (up-

holding Medicaid provisions regarding spousal deeming). Federal and state Medicaid rules, however, do

not always take into account the legal obligation of spouses to support each other when determining a

married nursing home patient’s nancial eligibility for Medicaid payment for nursing home care or the

amount that a married nursing home patient must contribute toward the cost of his or her nursing home

care. Federal Medicaid regulations, for example, prohibit state Medicaid programs from counting the

income of a Medicaid applicant’s spouse in determining whether the applicant is eligible for Medicaid

when the applicant and his or her spouse are not living together. 42 C.F.R. § 435.602(a)(3). And, as dis-

cussed below, the federal Medicaid statute establishes special rules regarding the income and resources

of individuals whose spouses are nursing home patients and apply for Medicaid payment for nursing

home care.

18. “Medicaid estate planning” strategies may allow some elderly or disabled persons and their spouses

to preserve some or all of their “excess” resources for themselves, their spouses, or their families rather

than spending them for nursing home care. Medicaid estate planning, however, has been, and remains,

controversial. See Stephen A. Moses, “e Fallacy of Impoverishment,” e Gerontologist 30(1): 21–25

(1990). Critics of Medicaid estate planning contend that, as the result of the eorts of “a veritable cottage

industry of elder law attorneys . . . whose mission is to advise clients with sizable assets about how they

can preserve those assets and get Medicaid to pay for nursing home care when they need it,” Medicaid

“has been stretched beyond its original purpose of providing a safety net for the poor,” and, instead, “has

evolved into a middle class entitlement and an asset shelter for the rich.” See Ellen O’Brien, “Medicaid’s

Coverage of Nursing Home Costs: Asset Shelter for the Wealthy or Essential Safety Net?” Georgetown

University Long-Term Care Financing Project Issue Brief, May 2005, http://ltc.georgetown.edu/pdfs/

nursinghomecosts.pdf (last visited June 9, 2009). In response to concerns regarding the potential abuses

of Medicaid estate planning, Congress has enacted legislation limiting some forms of Medicaid estate

planning. For example, federal law limits an individual’s eligibility for Medicaid payment for nurs-

ing home care if the patient or the patient’s spouse transfers assets for less than market value in order

to qualify for Medicaid. 42 U.S.C. § 1396p, as amended by the federal Decit Reduction Act of 2005,

Pub. L. No. 109-171 (2005). One study, however, concludes that there is little evidence that elderly

individuals or couples transfer assets in order to become eligible for Medicaid nursing home care and

6 Elder Law Bulletin

Medicaid Income Limits for Nursing Home Patients

If a nursing home patient meets all of Medicaid’s nonnancial eligibility requirements, his or her

countable resources are less than the $2,000 Medicaid resource limit, and he or she has been a

nursing home patient for at least thirty consecutive days, the patient will be eligible for Medicaid

payment for his or her nursing home care if (1) his or her countable monthly income is less than

the nursing home’s monthly Medicaid reimbursement rate,

(2) his or her net countable monthly

income is less than the nursing home’s private rate,

or (3) his or her net countable monthly in-

come is less than the nursing home’s private rate plus other predictable medical expenses that will

not be covered by the nursing home.

In determining a nursing home patient’s eligibility for Medicaid, however, the income of the

individual’s spouse is not considered unless the spouse is also a nursing home patient, lives in

the same room with the individual who is applying for Medicaid payment for nursing home

care, and is also applying for Medicaid payment for nursing home care. When income is paid

jointly to a nursing home patient and his or her spouse, each spouse generally is presumed to

receive half of the income.

Medicaid Payment for Nursing Home Care

If a nursing home patient meets all of Medicaid’s nancial and nonnancial eligibility require

ments and is in a Medicaidcertied nursing care bed North Carolina’s Medicaid program will

pay at least part of the cost of the patient’s nursing home care

e amount that Medicaid pays on behalf of an eligible Medicaid recipient is determined by

subtracting the patient’s monthly liability (PML)

from the nursing home’s Medicaid reimburse-

ment rate.

And a Medicaid recipient’s PML, in turn, is equal to his or her countable income

that legislation designed to curb asset transfers and other forms of “Medicaid estate planning” produces

only small savings in federal and state spending for Medicaid. O’Brien, “Medicaid’s Coverage of Nursing

Home Costs: Asset Shelter for the Wealthy or Essential Safety Net?” Georgetown University Long-Term

Care Financing Project Issue Brief, May 2005, http://ltc.georgetown.edu/pdfs/nursinghomecosts.pdf (last

visited June 9, 2009).

19. Each nursing home in North Carolina is assigned a daily Medicaid reimbursement rate. See North

Carolina Division of Medical Assistance, “Nursing Facility Rates,” www.ncdhhs.gov/dma/fee/Nur

FacRates.pdf (last visited June 9, 2009). A facility’s monthly Medicaid reimbursement rate is calculated

by multiplying the daily rate by 31 and rounding up to the next dollar. In 2009 the average Medicaid

reimbursement rate for North Carolina nursing homes was approximately $156.88 per day (or $4,864 per

month).

20. Net countable income is determined by subtracting the exclusions, deductions, disregards, ex-

emptions, and the medically needy maintenance allowance that would be allowed in determining the

eligibility of Medicaid applicants in private living arrangements. A nursing home’s monthly private rate

is determined by multiplying its daily private rate by 31. e average cost of nursing home care in North

Carolina currently ranges from approximately $153.42 to $197.26 per day (or $4,757 to $6,116 per month).

Genworth Financial, “Cost of Long Term Care Across the Nation,” www.genworth.com/content/

products/long_term_care/long_term_care/cost_of_care.html (last visited June 9, 2009).

21. e patient monthly liability (PML) is, in essence, a required copayment that the patient must

make to the nursing home.

22. For example, if a facility’s monthly Medicaid reimbursement rate is $4,200 per month and a

Medicaid recipient’s PML is $1,600, Medicaid will pay $2,600 to the nursing home and the patient must

pay $1,600 of the cost of his or her nursing home care.

Medicaid, Nursing Home Care, and Spousal Responsibility 7

minus (1) a personal needs allowance of $30; (2) an additional allowance of up to $25 for

guardianship fees; (3) income paid to the patient’s community spouse under Medicaid’s com-

munity spouse protection rules (discussed below); (4) an allowance of $242 per month if the

patient does not have a community spouse and can reasonably be expected to return to a private

living arrangement within six months; (5) an allowance for dependent children, parents, or sib-

lings; and (6) an allowance for any out-of-pocket expenses for current and future unmet medi-

cal needs, as well as payments for medical care received while the patient was not eligible for

Medicaid.

Protecting the Income and Assets of Spouses

of Nursing Home Patients under the MCCA

On June 8, 1988, Congress passed the Medicare Catastrophic Coverage Act of 1988 (MCCA),

which was signed into law by President Ronald Reagan on July 1, 1988.

Before enactment of the MCCA, state Medicaid rules often required a married couple to

spend virtually all of the couple’s nancial resources for the nursing home care of a spouse who

was admitted to a nursing home (the “institutionalized spouse”) before providing Medicaid

coverage for the institutionalized spouse’s nursing home care. Often, this left the spouse who

remained at home (the “community spouse”) destitute because the couple’s assets had been

spent down to pay the cost of the institutionalized spouse’s nursing home care before the in-

stitutionalized spouse qualied for Medicaid, and, after the institutionalized spouse qualied

for Medicaid, all or most of the institutionalized spouse’s income had to be used to pay part of

the cost of his or her nursing home care rather than for the support of his or her community

spouse.

To prevent or mitigate these forms of so-called spousal impoverishment, the MCCA

established special rules allowing married couples to protect a specied portion of the couple’s

income and resources for the benet of the community spouse of a nursing home patient.

e requirements of the MCCA’s community spouse protection rules are binding on all state

Medicaid programs and, in determining the Medicaid eligibility of an institutionalized spouse,

supersede the other provisions of the federal Medicaid law to the extent they are inconsistent

with the community spouse protection rules.

e MCCA generally denes “institutionalized spouse” as a person who (1) is likely to be in

a nursing facility for at least thirty consecutive days and (2) is married to a spouse who is not in a

23. Pub. L. No. 100-360, 102 Stat. 683 (1988).

24. See Wisconsin Dept. of Health and Family Services v. Blumer, 534 U.S. 473, 122 S. Ct. 962 (2002).

25. 42 U.S.C. § 1396r-5. It is also important to note, though, that in enacting the MCCA, “Congress

sought to protect community spouses from ‘pauperization’ while preventing nancially secure couples

from obtaining Medicaid assistance.” Wisconsin Dept. of Health and Family Services v. Blumer, 534 U.S.

at 480, 122 S. Ct. at 968 (emphasis added).

26. 42 U.S.C. § 1396r-5(a)(4); 42 U.S.C. § 1396r-5(a)(1). North Carolina’s Medicaid program appears to

deny the MCCA protections to community and institutionalized spouses who have been separated for

more than twelve months immediately preceding the institutionalized spouse’s admission to a nursing

facility. is policy, however, appears to be inconsistent with the MCCA’s community spouse protection

rules.

8 Elder Law Bulletin

nursing facility; “community spouse” is dened as a person who (1) is married to an institution-

alized spouse and (2) is not a patient in a nursing facility.

Under the MCCA a community spouse’s income may not be deemed available to his or her

institutionalized spouse when a state Medicaid program is determining the institutionalized

spouse’s eligibility for Medicaid.

And, if an institutionalized spouse is determined eligible for

Medicaid (applying the community spouse resource rules discussed below), no resources owned

by the community spouse may be deemed available to the institutionalized spouse after the

month in which the institutionalized spouse was determined eligible.

e MCCA also protects community and institutionalized spouses by requiring state

Medicaid programs to implement

a community spouse resource allowance (CSRA) that must be applied in determining •

whether an institutionalized spouse is eligible for Medicaid payment for nursing home

care and

a minimum monthly maintenance needs allowance (MMMNA) for community spouses •

and a community spouse monthly income allowance (CSMIA) that apply in determining

how much of an institutionalized spouse’s income must be used to pay part of the cost of

his or her nursing home care and how much may be provided for the community spouse’s

support.

e community spouse protection rules, however, apply only as long as one spouse is an

institutionalized spouse and the other spouse is a community spouse. A couple, therefore, is not

protected by the community spouse protection rules if they divorce, if the community spouse

dies, if the community spouse is admitted to a nursing home, or if the institutionalized spouse

ceases to receive nursing home care.

The MCCA’s Community Spouse Resource Allowance

e purpose of Medicaid’s CSRA is to reserve a portion of a married couple’s countable re-

sources for the benet of the community spouse. Under the MCCA, the value of the CSRA

is deemed unavailable to the institutionalized spouse in determining his or her eligibility for

Medicaid payment nursing home care, while all countable resources owned by the institutional-

ized spouse, the community spouse, or both in excess of the CSRA are counted in determining

the institutionalized spouse’s Medicaid eligibility for nursing home care.

27. 42 U.S.C. § 1396r-5(h). A state may include within the denition of “institutionalized spouse” a

person who is eligible for home- and community-based services in lieu of nursing home care (for example,

persons are eligible for Medicaid under North Carolina’s community alternatives program for disabled

adults) and is married to a spouse who is not in a medical institution or nursing facility. e MCCA rules

also apply to individuals who receive institutional or noninstitutional services under a Medicaid PACE

(Program of All Inclusive Care for the Elderly) demonstration waiver program. 42 U.S.C. § 1396r-5(a)(5).

28. 42 U.S.C. § 1396r-5(b)(1). In determining the incomes of the community spouse and the institu-

tionalized spouse, the MCCA generally uses the “name on the check” method under which payments

made solely in the name of one spouse are attributable to that spouse only and when payments are made

jointly to both spouses one-half of the income is attributed to each spouse. 42 U.S.C. § 1396r-5(b)(2).

29. 42 U.S.C. § 1396r-5(c)(4).

30. e MCCA’s rules do not apply to couples if the institutionalized spouse has been continuously

institutionalized since September 30, 1989.

Medicaid, Nursing Home Care, and Spousal Responsibility 9

Under the MCCA each state Medicaid program is required to establish a CSRA in accordance

with the requirements and limitations set forth in 42 U.S.C. § 1396r-5(f)(2)(A).

Under those

requirements and limitations a state’s CSRA generally must be the greater of

$21,912 (as of January 1, 2009) or a higher amount, not to exceed $109,560 1.

(as of January 1, 2009), established by the state Medicaid program, or

one-half of the total value of the resources [other than a home, household goods, 2.

and other resources excluded under the federal Supplemental Security Income

statute (42 U.S.C. § 1382b)] owned by the institutionalized spouse, the community

spouse, or both as of the date of the institutionalized spouse’s rst continuous period

of institutionalization, but not more than $109,560 (as of January 1, 2009).

In North Carolina the “minimum” CSRA is $21,912 and the “maximum” CSRA is $109,560 (as of

January 1, 2009).

Assume, for example, that John and Mary are married; that John is admitted to a nursing

home in North Carolina on January 1, 2009; that John owns countable resources valued at

$25,000 as of that date; that Mary owns countable resources valued at $5,000; and that they

jointly own countable resources valued at $90,000 in addition to their home, household furnish-

ings, and one car, and that John applies for Medicaid payment for nursing home care on July 1,

2009. If, as of that date, John and Mary jointly own countable resources valued at $50,000 (in

addition to their home, household furnishings, and a car), Mary owns countable resources val-

ued at $7,000, and John owns countable resources valued at $5,000, then Mary’s CSRA will be

$60,000 (one-half of the $120,000 in countable resources that John and Mary owned when John

was admitted to the nursing home).

When a state Medicaid agency determines the value of resources available to an institutional-

ized spouse at the time the institutionalized spouse applies for Medicaid payment for nursing

31. Read literally, 42 U.S.C. § 1396r-5(f)(2) denes “community spouse resource allowance” as the

amount determined under 42 U.S.C. § 1396r-5(f)(2)(A) minus the amount of countable resources other-

wise available to the community spouse. is denition, however, applies only with respect to determin-

ing the amount of assets that may be transferred from the institutionalized spouse to the community

spouse pursuant to 42 U.S.C. § 1396r-5(f)(1). e provisions of 42 U.S.C. § 1396r-5(c) apply with respect

to determining whether an institutionalized spouse meets the Medicaid eligibility requirements related to

countable resources and those provisions refer to the amount computed under 42 U.S.C. § 1396r-5(f)(2)(A).

is bulletin, therefore, will use the term community spouse resource allowance (CSRA) to refer to the

allowance computed under 42 U.S.C. § 1396r-5(f)(2)(A) rather than the dierence between that amount

and the amount of resources otherwise available to the community spouse, even though dening CSRA

as the amount computed pursuant to 42 U.S.C. § 1396r-5(f)(2)(A) is not, strictly speaking, correct.

32. e state Medicaid agency must notify both spouses of the CSRA when the agency makes a deter-

mination that the institutionalized spouse is eligible for Medicaid payment for nursing home care, as well

as providing notice of the CSRA to the institutionalized spouse, the community spouse, or the spouse’s

representative upon request. 42 U.S.C. § 1396r-5(e)(1).

33. Some states, including Florida, have provided additional protection to community spouses by

increasing the “minimum” CSRA to $109,560 (allowing a community spouse to retain all of the couple’s

resources up to $109,560 rather than only half of the couple’s resources up to $109,560). North Carolina,

however, has not chosen to increase its “minimum” CSRA as allowed by federal law.

34. If the value of John’s and Mary’s countable resources on January 1, 2009, had been less than

$43,824, Mary’s CSRA would have been $21,912. If the value of John’s and Mary’s countable resources on

January 1, 2009, had been more than $219,120, Mary’s CSRA would have been $109,560.

10 Elder Law Bulletin

home care, all resources of the community spouse and the institutionalized spouse generally

will be deemed available to the institutionalized spouse to the extent that the couple’s combined

resources exceed the community spouse’s resource allowance.

So, in the example regarding John and Mary, the value of the couple’s combined countable

resources at the time of John’s application for Medicaid would be $62,000, but only $2,000 (the

amount that exceeds Mary’s $60,000 CSRA) would be deemed available to John and considered

in determining his Medicaid eligibility for nursing home care. And, because the value of the

couple’s countable resources deemed available to John does not exceed Medicaid’s $2,000 asset

limit, John will be eligible for Medicaid if he meets Medicaid’s other nancial and nonnan-

cial eligibility requirements. In order to remain eligible for Medicaid, however, John will need

to convert his interest in the $50,000 in countable resources that he and Mary own jointly and

$3,000 of the $5,000 in countable resources that he owns into assets that are not counted in

determining his Medicaid eligibility or transfer those assets to Mary as soon as practicable after

the date he is determined to be eligible for Medicaid payment for nursing home care.

The MCCA’s Community Spouse Monthly Income Allowance

e MCCA also requires state Medicaid programs to establish a minimum monthly main-

tenance needs allowance (MMMNA) for community spouses, to use that MMMNA in de-

termining a spouse’s CSMIA, and to use a spouse’s CSMIA in determining the amount of an

institutionalized spouse’s income that may be used for the community spouse’s support. Under

federal law a state’s MMMNA for community spouses generally must be at least $1,823 per

month (as of July 1, 2009) plus (if applicable) an excess shelter allowance, but not more than

$2,739 per month (as of July 1, 2009).

e amount of a spouse’s CSMIA is equal to the amount

35. 42 U.S.C. § 1396r-5(c)(2).

36. See 42 U.S.C. §§ 1396r-5(f)(1) and 1396r-5(c)(4). If Mary subsequently applies for Medicaid, her

countable resources, including those transferred to her by John, will be considered in determining her

Medicaid eligibility. If Mary transfers any of her countable resources, including those transferred to her

by John, for less than fair market value, she may be subject to Medicaid’s transfer-of-assets penalty. See

42 U.S.C. § 1396p(c). Mary’s subsequent transfer of assets for less than fair market value, however, should

not aect John’s continued Medicaid eligibility. See 42 U.S.C. §§ 1396r-5(c)(4) and 1396p(c)(2)(C)(ii). If

John subsequently acquires additional countable resources, he will need to convert those resources into

assets that are not counted in determining his Medicaid eligibility or transfer them to Mary (or to an-

other person for Mary’s sole benet). If he transfers those assets to Mary (or to another person for Mary’s

sole benet), he will not be subject to Medicaid’s penalty for transferring assets for less than market value

for the purpose of establishing Medicaid eligibility because the federal Medicaid statute allows a spouse

to transfer assets to his or her spouse without being subject to the transfer-of-assets penalty, and this

provision applies regardless of whether the transfer would provide Mary with resources in excess of her

CSRA. 42 U.S.C. § 1396p(c)(2)(B)(i).

37. See 42 U.S.C. § 1396r-5(d)(3). A community spouse is eligible for the MCCA’s excess shelter allow-

ance if his or her expenses for rent or mortgage payments, taxes and insurance, an allowance for utilities

($266 to $350 per month in 2009), and (for condominiums and housing cooperatives) required main-

tenance charges exceed $547 per month (as of July 1, 2009). e minimum monthly maintenance needs

allowances (MMMNAs) and excess shelter allowance standards for community spouses are higher in

Alaska and Hawaii.

Medicaid, Nursing Home Care, and Spousal Responsibility 11

by which his or her MMMNA exceeds his or her monthly income (determined without regard

to the allowance).

It is important to note that the CSMIA is not relevant in determining whether an institution-

alized spouse is eligible for Medicaid. Instead, it applies to post-eligibility determinations regard-

ing an eligible institutionalized spouse’s PML for the cost of nursing home care.

For example, assume that John and Mary are married, that John was admitted to a nursing

home in North Carolina and has been found to be eligible for Medicaid payment for nursing

care, and that Mary continues to live in the couple’s home. If John receives $1,600 per month

in Social Security retirement benets and $2,400 per month in other retirement benets, Mary

receives $800 per month in Social Security benets, and Mary pays $874 per month in shelter

costs (mortgage, utilities, taxes, and insurance), then Mary’s MMMNA is $2,150 per month

($1,823 plus a $327 excess shelter allowance), and her CSMIA is $1,350 per month ($2,150 minus

$800). is means that if John makes available to Mary (or for Mary’s benet) up to $1,350 of his

income each month, the amount that he otherwise would be required to pay for his nursing care

will be reduced by the amount that he gives Mary (or uses for her benet) and the amount that

the state Medicaid program would otherwise pay for John’s nursing home care will be increased

by that amount.

Exceptions to the MCCA’s CSMIA and CSRA Rules

What happens, though, if either John or Mary feels that Mary’s CSMIA or CSRA is insucient

to meet her needs?

e short answer is that the MCCA includes provisions (discussed in the following sections

of this bulletin) that allow a spouse to obtain a CSMIA or CSRA that is higher than that other-

wise allowed under the community spouse protection rules discussed above.

Increasing the Community Spouse’s Monthly Income Allowance

Under the MCCA there are two separate and distinct situations in which a state Medicaid

agency must allow a CSMIA that is higher than the amount otherwise allowed under 42 U.S.C. §

1396r-5(d)(2) through (d)(4).

38. 42 U.S.C. § 1396r-5(d)(2). e state Medicaid agency must notify both spouses of the community

spouse’s monthly income allowance when the agency makes a determination that the institutionalized

spouse is eligible for Medicaid payment for nursing home care, as well as providing notice of the commu-

nity spouse’s monthly income allowance to the institutionalized spouse, the community spouse, or the

spouse’s representative upon request. 42 U.S.C. § 1396r-5(e)(1).

39. 42 U.S.C. § 1396r-5(d)(1)(B). An institutionalized spouse also is eligible for an additional family

allowance if he or she makes available a portion of his or her income for the support of his or her de-

pendent or minor child(ren), dependent parent(s), or dependent sibling(s). 42 U.S.C. § 1396r-5(d)(1)(C).

Absent a court order requiring the institutionalized spouse to pay support for a community spouse, the

institutionalized spouse is not required to provide any or all of the CSMIA to the community spouse.

e institutionalized spouse, therefore, may choose not to provide any support to the community spouse,

to provide support in an amount less than the CSMIA, or to provide support equal to the CSMIA; the

community spouse may prefer not to receive any support or support in an amount less than the CSMIA

in order to protect the community spouse’s eligibility for needs-based public assistance benets.

40. See M.E.F. v. A.B.F., 925 A.2d 12, 16 (N.J. App. Div. 2007); H.K. v. New Jersey Division of Medical

Assistance and Health Services, 878 A.2d 16 (N.J. App. Div. 2005); In re Tyler, 2002 WL 1274125 (D.C.

12 Elder Law Bulletin

Increasing the CSMIA Based on Exceptional Circumstances

Under the MCCA, a state Medicaid agency is required to increase the CSMIA if an institution-

alized or community spouse requests a fair hearing and establishes that, due to “exceptional

circumstances resulting in signicant nancial duress,” the community spouse needs income

above the level otherwise provided by the state’s MMMNA.

In North Carolina a request for a fair hearing seeking an increase in the CSMIA may be made

orally or in writing to the social services department of the county in which the institutional-

ized spouse applied for Medicaid.

e county social services director (or the director’s desig-

nee) generally must hold a hearing within ve days of the request and issue a written decision

within ve days of the hearing.

If the spouse disagrees with the director’s decision, he or she

may request, within fteen days, a de novo hearing before a hearing ocer employed by the

state Department of Health and Human Services (DHHS).

Although federal law requires North Carolina’s Medicaid program to increase the CSMIA if

a county social services director or DHHS hearing ocer determines that the institutional or

community spouse has established that the community spouse needs income above the level

otherwise provided by the state’s MMMNA, North Carolina’s Medicaid statute, rules, and poli-

cy do not provide any guidelines or standards for determining what constitutes the “exceptional

circumstances” and “signicant nancial duress” that require an increase in the CSMIA.

If a nal decision by DHHS fails to increase the CSMIA or to increase the CSMIA to the

extent requested by the institutionalized or community spouse, the spouse may seek judicial

review of the agency’s decision by ling a petition in superior court within thirty days.

Basing the CSMIA on a Court Order for Spousal Support

e MCCA also provides that if a court has entered an order against an institutionalized spouse

for monthly income for the support of a community spouse, the amount of the CSMIA for the

institutionalized spouse may not be less than the amount of income that the institutionalized

spouse pays pursuant to that court order.

It is important to note that the MCCA does not create an independent, federally based cause

of action for increasing the CSMIA, and 42 U.S.C. § 1396r-5(d)(5), therefore, does not give a

Super. Ct. 2002); Gomprecht v. Gomprecht, 652 N.E.2d 936 (N.Y. 1995).

41. 42 U.S.C. §§ 1396r-5(e)(2)(A) and 1396r-5(e)(2)(B).

42. See N.C. G. S. (hereinafter G.S.) § 108A-79(c).

43. G.S. 108A-79(e), (f).

44. G.S. 108A-79(g). e hearing must be conducted according to the procedures set forth in

G.S. 108A-79(i), Article 3 of North Carolina’s Administrative Procedure Act (G.S. Ch. 150B), and appli-

cable federal law and regulations.

45. According to Nicola J. Melby, an elder law attorney who practices in Brevard, North Carolina,

case law from other states interpreting the “exceptional circumstances” and “signicant nancial duress”

standard under 42 U.S.C. § 1396r-5(e)(2)(B) varies widely. See Burinskas v. Dept. of Social Services, 240

Conn. 141 (Conn. 1997); Anderson v. omas, 1999 Conn. Super. LEXIS 2162 (Conn. Super. Ct., Aug. 9,

1999); Genser v. omas, 2000 Conn. Super. LEXIS 1 (Conn. Super. Ct., Jan. 10, 2000); Davis v. Pennsyl-

vania Dept. of Public Welfare, 776 A.2d 1026 (Pa. Comm. 2001); Schachner v. Perales, 648 N.E.2d 1321

(N.Y. 1995); Balxarini v. Suolk County Dept. of Social Services, 863 N.Y.S.2d 706 (N.Y. App. Div. 2008).

46. G.S. 108A-79(k). See also Meza v. Division of Social Services, ___ N.C. App. ___, 668 S.E.2d 571

(2008) (appeal pending).

47. 42 U.S.C. § 1396r-5(d)(5). is frequently is referred to as the “judicial” option.

Medicaid, Nursing Home Care, and Spousal Responsibility 13

North Carolina court subject matter jurisdiction to order North Carolina’s Medicaid program

to increase the amount of the CSMIA.

ere are, however, at least two instances (discussed below) in which state law authorizes a

North Carolina court to enter a spousal support order requiring an institutionalized spouse to

pay support for his or her community spouse.

And, if a North Carolina court does so and the

amount of support provided under the court order exceeds the CSMIA that would otherwise

be allowed under 42 U.S.C. § 1396r-5(d)(2) through (d)(4), the MCCA requires North Carolina’s

Medicaid program to increase the CSMIA to the amount that the institutional spouse pays to

the community spouse pursuant to the court order for support.

Orders for Postseparation Support and Alimony

Under North Carolina law a dependent spouse may obtain a court order requiring his or her

spouse to pay postseparation support or alimony.

48. See letter dated Feb. 13, 2003, from Ginni Hain, Centers for Medicare and Medicaid Services, to

Francis M. Bass, Jr., Tennessee Department of Human Services (copy provided to author by Pamela A.

Hayden-Wood, Tennessee Attorney General’s Oce). See also Arkansas Dept. of Health and Human

Services v. Smith, 262 S.W.3d 167 (Ark. 2007); Huynh v. King, 269 S.W.3d 540 (Mo. App. 2008); Amos

v. Amos, 267 S.W.3d 761 (Mo. App. 761 2008). It should be noted that although the decisions in Smith,

Huynh, and Amos refer to the community spouse’s failure to exhaust her administrative remedies by

applying to a state court for a spousal support order before her institutionalized spouse applied for

Medicaid payment for nursing home care, it seems clear that the real reason the trial courts lacked sub-

ject matter jurisdiction to enter an order to increase the CSMIA was not because the community spouse

failed to exhaust her administrative remedies by not asking (or, given the fact that her institutionalized

spouse had not yet applied for Medicaid payment for nursing home care, not being able to ask) the state

Medicaid agency to increase her CSMIA, but rather that (1) the MCCA does not create an independent

cause of action allowing a state court to increase the CSMIA beyond an amount greater than that oth-

erwise allowed under the state’s Medicaid community spouse protection rules, and (2) the states’ family

and probate laws apparently did not provide a legal basis for the court to enter a spousal support order

under the particular circumstances of those cases.

49. See also G.S. 14-322(b), (e) (allowing a court to order a supporting spouse to pay spousal support

for his or her dependent spouse if the supporting spouse has willfully “abandoned” the dependent spouse

and is convicted for willfully failing to provide adequate support for his or her dependent spouse).

50. See Blumberg v. Tennessee Dept. of Human Services, 2000 WL 1586454 (Tenn. Ct. App. 2000).

51. G.S. 50-16.2A (postseparation support); G.S. 50-16.3A (alimony). Postseparation support and ali-

mony are discussed in detail in chapters 8 and 9 of Suzanne Reynolds, Lee’s North Carolina Family Law

(Charlottesville: Lexis Publishing, 1999). e district court is the proper division for determining claims

involving postseparation support or alimony. Reynolds, Lee’s North Carolina Family Law, §§ 8.33 and

9.55. Spouses may enter into an agreement under which one spouse will pay postseparation support or

alimony to the other spouse and, with the approval of a district court judge, have their agreement entered

as a consent order for postseparation support or alimony. Reynolds, Lee’s North Carolina Family Law,

§§ 8.44 and 9.68. In addition, a supporting spouse may execute a confession of judgment under Rule 68.1

of North Carolina’s Rules of Civil Procedure providing for the payment of alimony to his or her dependent

spouse. G.S. 50-16.10. A court may modify or vacate an order for postseparation support or alimony upon

a motion by either spouse or anyone interested in the order and a showing of changed circumstances.

G.S. 50-16.9(a). See Reynolds, Lee’s North Carolina Family Law, §§ 9.71 through 9.77.

14 Elder Law Bulletin

Postseparation Support

Postseparation support is a form of temporary, court-ordered spousal support.

A dependent

spouse may bring a claim for postseparation support by ling a complaint, motion, counter-

claim, or cross-claim in district court in a civil action for annulment of the parties’ marriage,

absolute divorce, divorce from bed and board, alimony without divorce, or any other civil action

under Chapter 50 of North Carolina’s General Statutes (hereinafter G.S.) in which the spouses

are parties.

In order to be entitled to a court order for postseparation support, a spouse must prove that

(1) he or she and his or her spouse are separated,

(2) he or she is a “dependent spouse,”

(3) his

or her resources are not adequate to meet his or her reasonable needs and the supporting spouse

has the ability to support the dependent spouse,

and, (4) if there is evidence of marital mis-

conduct by either spouse, an award of postseparation support is equitable after considering the

marital misconduct.

In determining the amount of postseparation support payable to a dependent spouse, a dis-

trict court judge must consider the parties’ nancial needs, the parties’ accustomed standard

of living, the parties’ present incomes and earnings and income-earning abilities, the parties’

separate and marital debt service obligations, the parties’ reasonable expenses, each party’s legal

obligations for the support of other persons, and, if applicable, evidence of marital misconduct

by either party.

e amount of postseparation support payable to a dependent spouse, however,

lies within the judge’s sound discretion and will not be set aside on appeal absent a showing that

the judge abused his or her discretion in determining the amount of postseparation support.

52. G.S. 50-16.2A; G.S. 50-16.1A(4). A court may order payment of postseparation support for either

a denite or indenite period of time, but an order for payment of postseparation support terminates on

the date specied in the order, the entry of an order awarding or denying alimony, the dismissal of the

alimony claim, entry of a judgment for absolute divorce (unless a claim for alimony is pending when the

divorce judgment is entered), when the dependent spouse remarries or engages in cohabitation, or upon

the death of either spouse, whichever is earlier. G.S. 50-16.1A(4).

53. G.S. 50-16.1A(4); G.S. 50-16.2A(a).

54. See Reynolds, Lee’s North Carolina Family Law, § 8.35.

55. G.S. 50-16.2A(c). A spouse is a “dependent spouse” if he or she is “actually substantially dependent”

upon his or her spouse for his or her maintenance or support or is substantially in need of maintenance

and support from his or her spouse. G.S. 50-16.1A(2). A spouse is a “supporting spouse” if he or she is the

spouse of a “dependent spouse.” G.S. 50-16.1A(5). See also Reynolds, Lee’s North Carolina Family Law,

§§ 8.3 through 8.5.

56. A court’s decision regarding the dependent spouse’s need for support and the supporting spouse’s

ability to provide support must be based on its consideration of the parties’ nancial needs, the parties’

accustomed standard of living, the parties’ present incomes and earnings and income-earning abilities,

the parties’ separate and marital debt service obligations, the parties’ reasonable expenses, and each

party’s legal obligations for the support of other persons. G.S. 50-16.2A(c), (b). See also Reynolds, Lee’s

North Carolina Family Law, §§ 8.6 through 8.11.

57. G.S. 50-16.2A(d). A spouse is not entitled to postseparation support if he or she has executed a

valid separation agreement or premarital agreement that expressly waives his or her right to postsepara-

tion support and the agreement has been performed. G.S. 50-16.6(b).

58. G.S. 50-16.2A(b), (d). See also Reynolds, Lee’s North Carolina Family Law, §§ 8.20 through 8.28.

59. See Reynolds, Lee’s North Carolina Family Law, § 8.19.

Medicaid, Nursing Home Care, and Spousal Responsibility 15

A court may order a supporting spouse to pay postseparation support to his or her dependent

spouse through periodic payments, by lump sum payment, or by transfer or possession of real or

personal property or any interest therein.

Alimony

Alimony refers to a more permanent form of court-ordered support paid to a spouse or former

spouse for either a specied or indenite term.

A dependent spouse may bring a claim for

alimony by ling a complaint, motion, counterclaim, or cross-claim in district court in a civil

action for absolute divorce, divorce from bed and board, alimony without divorce, or any other

civil action under G.S. Chapter 50 in which the spouses are parties.

In order to be entitled to a court order for alimony, a spouse must prove that (1) he or she is

a “dependent spouse,”

and (2) an award of alimony is equitable considering all of the relevant

factors, including the relative needs of the spouses, their relative assets and liabilities, the stan-

dard of living established by the spouses during their marriage, the duration of their marriage,

the amount and sources of their incomes (including medical benets), their ages and physical

and mental conditions, marital misconduct by either spouse, and any other factor relating to the

economic circumstances of the parties that the court nds just and proper.

In determining the amount and duration of alimony payable to a dependent spouse, a dis-

trict court judge must consider and weigh all relevant factors, including the relative needs of

the spouses, their relative assets and liabilities, the standard of living established by the spouses

during their marriage, the duration of their marriage, the amount and sources of their incomes

(including medical benets), their ages and physical and mental conditions, marital misconduct

by either spouse, and any other factor relating to the economic circumstances of the parties that

the court nds just and proper.

ese factors could include the fact that the supporting spouse

is a nursing home patient who is or could be eligible for Medicaid payment for his or her nursing

60. G.S. 50-16.1A(4); G.S. 50-16.7(a).

61. G.S. 50-16.1A(1); G.S. 50-16.3A. e duration of court-ordered alimony lies within the sound

discretion of the district court judge. G.S. 50-16.3A(b). An order for payment of alimony terminates on

the date specied in the order, when the dependent spouse remarries or engages in cohabitation, or upon

the death of either spouse, whichever is earlier. G.S. 50-16.3A; G.S. 50-16.9(b). It is important to note that

when a nursing home patient is ordered to pay alimony for the patient’s former spouse, the MCCA’s pro-

visions regarding CSMIAs do not apply because the patient’s former spouse is no longer married to the

patient and, therefore, does not fall within the MCCA’s denition of “community spouse.”

62. G.S. 50-16.1A(1); G.S. 50-16.3A(a).

63. G.S. 50-16.3A(a). A spouse is a “dependent spouse” if he or she is “actually substantially dependent”

upon his or her spouse for his or her maintenance or support or is substantially in need of maintenance

and support from his or her spouse. G.S. 50-16.1A(2). A spouse is a “supporting spouse” if he or she is the

spouse of a “dependent spouse.” G.S. 50-16.1A(5). See also Reynolds, Lee’s North Carolina Family Law,

§§ 9.4 through 9.13.

64. G.S. 50-16.3A(a), (b). See also Reynolds, Lee’s North Carolina Family Law, §§ 9.4 through 9.13, and

§§ 9.20 through 9.49. A court may not award alimony to a dependent spouse if it nds that the dependent

spouse participated in an act of uncondoned illicit sexual behavior during the marriage and before or on

the date of separation. G.S. 50-16.3A(a). A spouse is not entitled to alimony if he or she has executed a

valid separation agreement or premarital agreement that expressly waives his or her right to alimony and

the agreement has been performed. G.S. 50-16.6(b).

65. G.S. 50-16.3A(b). See also Reynolds, Lee’s North Carolina Family Law, §§ 9.4 through 9.13, and

§§ 9.20 through 9.49.

16 Elder Law Bulletin

home care even if he or she is required to pay alimony in an amount that exceeds his or her

spouse’s CSMIA. e amount of alimony payable to a dependent spouse, however, lies within

the judge’s sound discretion and will not be set aside on appeal absent a showing that the judge

abused his or her discretion in determining the amount of alimony.

A court may order a supporting spouse to pay alimony to his or her dependent spouse

through periodic payments, by lump sum payment, or by transfer or possession of real or per-

sonal property or any interest therein.

Spousal Support Orders in Guardianship Proceedings

Spouses have a common law obligation to support each other.

e precise parameters of this

obligation and the means through which it may be enforced, however, are not entirely clear. e

North Carolina Court of Appeals, though, has issued one reported decision regarding a spouse’s

right to bring a claim for spousal support against his or her spouse when the spouse from whom

support is sought has been adjudicated incompetent under G.S. Chapter 35A and the court has

appointed a guardian of the estate for the incompetent spouse.

In that case, Cline v. Teich, a couple (Mr. and Mrs. Cline) married on May 2, 1986, and lived

together in Mr. Cline’s home until November 21, 1987, when Mr. Cline was admitted to a nurs-

ing home due to a medical condition that left him permanently brain damaged. Mr. Cline was

subsequently determined to be mentally incompetent, and a guardian was appointed for him

pursuant to G.S. Chapter 35A. After Mr. Cline’s guardian refused to provide support for Mrs.

Cline from Mr. Cline’s estate, Mrs. Cline brought an action in district court seeking spousal

support from Mr. Cline’s estate. Despite the absence of any statutory provisions authorizing a

spouse to seek support from the estate of an incompetent spouse,

the court of appeals held

that a spouse has a common law duty to support his or her spouse and that a dependent spouse

may enforce this duty against the estate of a spouse who has been adjudicated incompetent.

e appellate court, however, also went on to state that the rule it was announcing was “narrow”

and applied only “in the limited instance in which an incompetent’s estate is [suciently] ample

to provide for his [or her] own care and maintenance,” as well as support for the incompetent

ward’s spouse.

66. G.S. 50-16.3A(b). See also Reynolds, Lee’s North Carolina Family Law, § 9.21.

67. G.S. 50-16.1A(1); G.S. 50-16.7(a).

68. See Reynolds v. Reynolds, 208 N.C. 254, 180 S.E. 70 (1935); Cline v. Teich, 92 N.C. App. 257, 374

S.E.2d 472 (1988). See also Reynolds, Lee’s North Carolina Family Law, §§ 5.10 through 5.13.

69. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 472 (1988).

70. Cline predated the 1989 amendment to G.S. 35A-1251, which expressly allowed the guardian of the

estate of an incompetent ward to expend estate income (and to seek court approval for the expenditure

of estate principal) for the support and maintenance of the ward’s spouse and children. 1989 N.C. Sess.

Laws, ch. 473, sec. 13 (G.S. 35A-1251(21)).

71. Cline, 92 N.C. App. at 260–61, 374 S.E.2d at 464–65. e appellate court explicitly noted that Mrs.

Cline’s claim for spousal support was based on her right to spousal support under the common law and

was not a claim for alimony (which, at that time, would have required her to prove not only that she was a

dependent spouse in need of support but also that her husband was “at fault” as dened by former

G.S. 50-16.2). Id., 92 N.C. App. at 263, 374 S.E.2d at 466.

72. Cline, 92 N.C. App. at 262; 374 S.E.2d at 465. More specically, the court stated: “We do not hold

that the estate of an incompetent may be so depleted in favor of a spouse as to compromise the quality of

care provided to the incompetent, or to force the incompetent to become a public charge.” Id. (emphasis

added).

Medicaid, Nursing Home Care, and Spousal Responsibility 17

After the decision in Cline v. Teich, North Carolina’s General Assembly amended G.S. 35A-

1251 to allow the guardian of the estate of an incompetent ward to expend estate income (and

to seek court approval for the expenditure of estate principal) for the support and maintenance

of the ward’s spouse and children, and provided that, in determining whether support should be

provided for the ward’s spouse and the amount of spousal support that should be provided, the

guardian (or court) must consider the ward’s legal obligation to his or her spouse, the suciency

of the ward’s estate to meet the ward’s needs, the needs and resources of the ward’s spouse, and

the ward’s conduct or expressed wishes, prior to becoming incompetent, regarding support of

his or her spouse.

Spousal Support Orders and the MCCA’s “Exceptional Circumstances” Standard

As noted above, the MCCA allows a state Medicaid agency to increase the CSMIA if, as the re-

sult of an administrative fair hearing process, the agency determines that there are “exceptional

circumstances resulting in signicant nancial duress.”

But the MCCA also requires a state

Medicaid agency to increase a spouse’s CSMIA if a state court has entered a spousal support

order that exceeds the CSMIA that would otherwise be allowed under state law. And North

Carolina’s statutes governing spousal support [G.S. 50-16.2A, G.S. 50-16.3A, and

G.S. 35A-1251(21)] do not require a nding of exceptional circumstances, nancial duress, or

undue nancial hardship to support an award of spousal support.

e question, therefore, in North Carolina and in other states, is whether the MCCA’s stan-

dard regarding “exceptional circumstances resulting in signicant nancial duress” may, must,

or should apply with respect to spousal support orders involving institutionalized spouses when

Medicaid pays part of the cost of their nursing home care.

Although North Carolina’s General Assembly and its appellate courts have not yet addressed

this question, it has been addressed in several dierent ways by legislators and judges in several

states.

Several courts, for example, have held that the MCCA “does not prescribe a standard” to be

applied in spousal support proceedings in state courts and does not require that states adopt the

standard of “exceptional circumstances resulting in signicant nancial duress” with respect to

spousal support orders that provide the basis for increasing a spouse’s CSMIA under 42 U.S.C.

§ 1396r-5(d)(5).

According to those courts, a state may, if it chooses, make the MCCA’s “excep-

tional circumstances” standard applicable to spousal support orders involving institutionalized

spouses.

But under the MCCA, a state that chooses not to adopt the “exceptional circum-

stances” standard is free to apply its own dierent, and perhaps more lenient, standard with

respect to spousal support proceedings involving institutionalized spouses.

Some courts, therefore, have held that questions regarding eligibility for and the amount of

spousal support are determined by state, not federal, law and that, unless state law incorporates

the MCCA’s “exceptional circumstances” standard, a valid spousal support order that is entered

by a state court without a nding of “exceptional circumstances resulting in signicant nancial

73. G.S. 35A-1251(21).

74. 42 U.S.C. §§ 1396r-5(e)(2)(A) and 1396r-5(e)(2)(B).

75. Jenkins v. Fields, 1996 WL 221614 (S.D.N.Y. 1996); In re Tyler, 2002 WL 1274125 (D.C. Super. Ct.

2002).

76. Id.

77. Id.

18 Elder Law Bulletin

duress” must, nonetheless, be recognized by a state Medicaid agency in determining the amount

of a spouse’s CSMIA under 42 U.S.C. § 1396r-5(d)(5).

Some courts, however, have held that their state laws regarding spousal support allow a state

court to take the MCCA’s “exceptional circumstances” standard and other community spouse

protection rules into consideration in determining whether an award of spousal support is

warranted under state law or in determining the amount of spousal support that should be

ordered.

In addition, at least one state appellate court has held that family courts are required to ap-

ply the state Medicaid program’s MMMNA and the “exceptional circumstances” standard in

determining the amount of spousal support that may be ordered for a community spouse.

And

at least three states have enacted legislation that incorporates the MCCA’s community spouse

protection rules and “exceptional circumstances” standard into state laws governing court or-

ders for spousal support.

Other Potential Limitations on the “Judicial Option”

Although the MCCA clearly recognizes both an “administrative option” and a “judicial option”

for increasing the CSMIA, some state courts have imposed additional limitations with respect

to use of the MCCA’s judicial option.

One trial court, for example, held that the exception for spousal support orders in 42 U.S.C.

§ 1396r-5(d)(5) applies only with respect to spousal support orders that are entered before a sup-

porting spouse is admitted to a nursing home or is determined eligible for Medicaid payment

for nursing home care.

And, in the same case, one of the state’s appellate courts held that the

judicial option was not available to the community spouse who led an action for spousal sup-

port almost a year after her spouse was found eligible for Medicaid payment for his nursing care

and then asked the state Medicaid agency to increase her CSMIA.

Another appellate court held that a state Medicaid agency is not required to recognize a

spousal support order when determining the amount of an institutionalized spouse’s patient

monthly liability if the spousal support order was entered as a consent order after the support-

ing spouse was admitted to a nursing home and without a court hearing or independent judicial

review of the community spouse’s needs or the state’s countervailing interest in requiring the

78. Blumberg v. Tennessee Dept. of Human Services, 2000 WL 1586454 (Tenn. Ct. App. 2000); M.E.F.

v. A.B.F., 925 A.2d 12, 20–21 (N.J. App. Div. 2007) (holding that an award of spousal support entered

against an institutionalized spouse prior to Medicaid eligibility is governed by the standards articulated

in New Jersey’s laws governing spousal support rather than the “exceptional circumstances” standard in

42 U.S.C. § 1396r-5(e)(2)(B), and that there is “no principled reason why those standards should change

simply because the spouse [is] . . . eligible for Medicaid and subject to the spousal income protection

provisions” of the MCCA).

79. In re Tyler, 2002 WL 1274125 (D.C. Super. Ct. 2002); M.E.F, 925 A.2d at 21.

80. Gomprecht v. Gomprecht, 652 N.E.2d 936, 938 (N.Y. 1995).

81. V. C § 20-88.02:1; C. G. S. § 45a-655(d)(1); N. R. S. § 123.259(4).

82. See M.E.F, 925 A.2d at 16, 18–19. Although the appellate court agreed with the trial judge that

the use of the past tense in 42 U.S.C. § 1396r-5(d)(5) (if a court “has entered” a support order against an

institutionalized spouse) suggests that the CSMIA may not be based on a spousal support order that is

entered after the institutionalized spouse becomes eligible for Medicaid payment for nursing care, it af-

rmed the trial court’s decision on other grounds.

83. M.E.F., 925 A.2d at 20. e appellate court’s decision appears to have been based on the doctrines

of exhaustion of administrative remedies, election of remedies, or prohibited forum shopping.

Medicaid, Nursing Home Care, and Spousal Responsibility 19

institutionalized spouse to use his or her income to pay a fair share of the cost of his or her

nursing home care.

And the same decision also suggested that a state Medicaid agency is not

required to base a spouse’s CSMIA on the amount of a spousal support order against an institu-

tionalized spouse if the community spouse obtained the spousal support order without having

given the state Medicaid agency notice of the pending spousal support proceeding.

Increasing the Community Spouse’s Resource Allowance

As discussed above, North Carolina’s minimum CSRA (as of January 1, 2009) is $21,912 or one-

half of the combined value of the countable resources owned by the institutionalized spouse,

the community spouse, or both on the date of the institutionalized spouse’s rst continuous

period of institutionalization, whichever is greater, and the maximum CSRA in North Carolina

(as of January 1, 2009) generally is $109,560 or one-half of the combined value of the countable

resources owned by the institutionalized spouse, the community spouse, or both on the date of

the institutionalized spouse’s rst continuous period of institutionalization, whichever is less.

e MCCA, however, includes several exceptions that may allow a couple to increase the

CSRA that would otherwise be available to the community spouse or allow the community

spouse to retain resources that exceed the couple’s CSRA rather than “spending down” the “ex-

cess” resources for the institutionalized spouse’s nursing home care or other expenses.

Increasing the CSRA Based on a Spousal Support Order

e MCCA expressly provides that if (1) a court has entered an order against an institutional-

ized spouse for the support of his or her community spouse, and (2) the amount of assets trans-

ferred pursuant to that order for the support of the community spouse or a minor or dependent

child or dependent parent or sibling of the institutionalized spouse who resides with the com-

munity spouse exceeds the maximum CSRA that would otherwise be allowed, the couple’s

CSRA is equal to the amount of assets transferred pursuant to the spousal support order.

84. H.K. v. New Jersey Div. of Medical Assistance and Health Services, 878 A.2d 16, 20–21 (N.J. App.

Div. 2005) (characterizing the couple’s agreement regarding alimony as “an undisguised attempt to cir-

cumvent the Medicaid regulations concerning the appropriate level of the spousal allowance”).

85. H.K. , 878 A.2d at 21. By contrast, the Tennessee Court of Appeals has held that although it would

be “good policy” to require that the state’s Medicaid agency be given notice of a spousal support proceed-

ing that might aect Medicaid payment for an institutionalized spouse’s nursing home care, neither the

MCCA nor state law required such notice, and unless or until an order for spousal support is modied

or vacated, it must be honored by the state’s Medicaid agency in determining the amount of a spouse’s

CSMIA despite the fact that the state Medicaid agency did not receive timely notice of the proceeding.

Blumberg v. Tennessee Dept. of Human Services, 2000 WL 1586454 (Tenn. Ct. App. 2000). See also Ten-

nessee Op. Att’y Gen. No. 08-31 (Feb. 20, 2008) (unpublished, on le with the author) (holding that nei-

ther federal nor state law requires that notice be given to the state Medicaid agency when a proceeding

for divorce or legal separation is led by or against an institutionalized spouse who is or may be eligible

for Medicaid payment for nursing home care).

86. 42 U.S.C. §1396r-5(f)(2)(A)(iv).

20 Elder Law Bulletin

Increasing the CSRA to Supplement the Community Spouse’s Income

Under the MCCA a spouse may request, through the administrative fair hearing process, a state

Medicaid agency to increase the amount of the couple’s CSRA above the amounts described

above if

the institutionalized spouse has applied or been determined eligible for Medicaid payment 1.

for nursing home care;

the community spouse’s income (including any income from the community spouse’s share 2.

of the couple’s resources and any income of the institutionalized spouse that could be made

available to the community spouse via the CSMIA) is less than the state’s MMMNA; and

an additional allocation of resources to the community spouse is required in order to 3.

generate the additional income necessary to raise the community spouse’s income to an

amount equal to the state’s MMMNA.

Waiving the CSRA Rules Based on Undue Hardship

e MCCA also provides that an institutionalized spouse will not be ineligible for Medic-

aid payment for nursing home care under the MCCA’s rules regarding availability of “excess”

resources owned by the institutionalized spouse, the community spouse, or both if the state

Medicaid agency determines that denying the institutionalized spouse’s Medicaid eligibility

would cause “undue hardship.”

Spousal Refusal and Assignment of Support Rights

Finally, the MCCA includes two exceptions, commonly referred to as the “spousal refusal”

exceptions, providing that an institutionalized spouse will not be ineligible for Medicaid pay-

ment for nursing home care under the MCCA’s rules regarding availability of “excess” resources

owned by his or her community spouse if (1) the institutionalized spouse assigns to the state

Medicaid agency any rights he or she has to spousal support from the community spouse,

(2) the institutionalized spouse lacks the capacity, due to physical or mental impairment, to

execute such an assignment, and the state Medicaid agency has the right to bring a spousal sup-

port proceeding against the community spouse without an assignment of spousal support rights

by the institutionalized spouse.

87. 42 U.S.C. §§ 1396r-5(e)(2)(C) and 1396r-5(d)(6). After the U.S. Supreme Court’s 2002 decision in

Wisconsin Dept. of Health and Family Services v. Blumer, Congress amended the federal Medicaid statute

in 2006 (section 6013(a) of Pub. L. No. 109-171, 120 Stat. 64 (2006)) to require state Medicaid programs

to use the “income rst,” rather than the “resources rst,” method in determining whether to increase a

spouse’s CSRA.

88. 42 U.S.C. § 1396r-5(c)(3)(C). North Carolina’s Medicaid program has not adopted rules or policies

dening “undue hardship.”

89. e assignment of the institutionalized spouse’s rights to support from the community spouse

must be such that, under applicable state law, the state Medicaid agency may seek reimbursement from

the community spouse for some or all of the medical care provided to the institutionalized spouse. Cen-

ters for Medicare and Medicaid Services, State Medicaid Manual § 3260.1, www.cms.hhs.gov/Manuals/

PBM/itemdetail.asp?itemID=CMS021927 (last visited June 17, 2009).

90. 42 U.S.C. § 1396r-5(c)(3)(A) and (B). See also Centers for Medicare and Medicaid Services, State

Medicaid Manual § 3262.2, www.cms.hhs.gov/Manuals/PBM/itemdetail.asp?itemID=CMS021927

(last visited June 17, 2009). e MCCA’s “spousal refusal” exception is discussed in detail in Andrew D.

Wone, “Don’t Want to Pay for Your Institutionalized Spouse? e Role of Spousal Refusal and Medicaid

Medicaid, Nursing Home Care, and Spousal Responsibility 21

e MCCA’s “spousal refusal” exceptions have not yet been addressed by North Carolina’s

General Assembly, the state’s Division of Medical Assistance, or the state’s appellate courts.

ey have, however, been discussed by elder law attorneys in North Carolina

and have been

the subject of litigation in other states.

e MCCA’s “spousal refusal” exceptions, therefore, may allow an institutionalized spouse to

qualify for Medicaid payment for nursing home care when (1) the value of the institutionalized

spouse’s countable resources (including the institutionalized spouse’s share of any countable

resources owned jointly with the community spouse) is less than $2,000, and (2) the value of the

community spouse’s resources exceeds the amount of the couple’s CSRA.

It is important to note, though, that the “spousal refusal” exception does not limit the com-

munity spouse’s legal responsibility under state law to support the institutionalized spouse or

the authority of a state Medicaid agency, under state and federal law, to require the community

spouse to reimburse the state Medicaid program for at least part of the cost of the institution-

alized spouse’s nursing home care.

A state Medicaid agency, therefore, may be able to seek

reimbursement from the community spouse for the amount it has paid for the institutionalized

spouse’s nursing home care, either by virtue of the institutionalized spouse’s assignment of sup-

port rights or through other applicable legal procedures.

in Funding Long-Term Care,” 14 E L.J. 485 (2006). Although the MCCA does not refer expressly to

“spousal refusal,” establishing Medicaid eligibility under 42 U.S.C. § 1396r-5(c)(3)(A) generally involves

situations in which a community spouse refuses or fails to use his or her “excess” resources to pay for the

institutionalized spouse’s nursing home care.

91. A 1994 letter from the U.S. Health Care Financing Administration (the predecessor to the Centers

for Medicare and Medicaid Services) to North Carolina’s Division of Medical Assistance concluded that

the MCCA’s “spousal refusal” exception did not apply in North Carolina because, under the state’s pre-

1995 fault-based alimony statute, state law did not provide for the valid assignment of an institutional-

ized spouse’s right to support from his or her community spouse. See “Note, Morenz v. Wilson-Coker,”

1 N’. A. E L. A’. J. 327, 328 (2005). One might argue, however, that this conclusion was

based on a mistaken understanding of North Carolina’s law regarding spousal support rights and, in any

case, that it is no longer accurate given the 1995 revision of North Carolina’s statutes governing postsepa-

ration support and alimony.

92. “Judicial Options for Raising the CSRA or MMNA? What About Spousal Refusal?” (presentation

by Nicola J. Melby at the 13th Annual Elder Law Symposium sponsored by the North Carolina Bar As-

sociation’s Elder Law Section, Feb. 27, 2009).

93. See Morenz v. Wilson-Coker, 415 F.3d 230 (2d Cir. 2005); Gorlick v. Florida Dept. of Children and

Families, 789 So. 2d 1247 (Fla. App. 2001); In re Shah, 733 N.E.2d 1093, 1100 (N.Y. 2000).

94. See Marvin Rachlin, “Liability for Medicaid: What Is a Spouse’s Liability for Medicaid Benets

Paid?” 30 E. P 117 (2003).

95. See New York City Dept. of Social Services v. Spellman, 661 N.Y.S.2d 895 (N.Y. Sup. Ct. 1997); Poin-

dexter v. Illinois Dept. of Human Services, 869 N.E.2d 139 (2007). See also Rachlin, 30 E. P

117; and Wone, 14 E L.J. at 508–54, 520–27. See also G.S. 108A-57 (providing that the state Medicaid

agency is subrogated to all rights of recovery that a Medicaid recipient has against any person with re-

spect to medical care provided by the state Medicaid program); G.S. 108A-59 (providing for the assign-

ment to the state Medicaid program of a Medicaid recipient’s right to “third party benets” with respect

to medical care provided by the state Medicaid program); 42 U.S.C. § 1396k(a)(1)(A); 42 U.S.C.

§ 1396a(a)(25). See also North Carolina Baptist Hospitals, Inc. v. Harris, 319 N.C. 347, 354 S.E.2d 471

(1987) (holding that a husband or wife may be held liable by a medical provider, doctor, or hospital for the

cost of necessary medical care provided to his or her spouse).

22 Elder Law Bulletin

How Will the MCCA’s Spousal Protection Rules Aect North Carolina?

Although the MCCA’s spousal protection rules have been in eect for almost twenty years and

North Carolina’s Medicaid program has implemented almost all of the MCCA’s requirements

regarding CSRAs, MMMNAs, and CSMIAs, there are still a number of questions that may need

to be answered by the state Division of Medical Assistance, county social services departments,

clerks of superior court, district and superior court judges, elder law attorneys, and, perhaps, the

General Assembly. ese questions include:

When determining the amount of spousal support paid to a community spouse under state •

law, should North Carolina’s courts apply the standards set forth in state law or, instead,

should they require a nding of “exceptional circumstances” resulting in undue nancial

hardship if the amount of spousal support payable would exceed the spouse’s CSMIA?

When a community spouse les a legal proceeding seeking spousal support from an •

institutionalized spouse who is or may be eligible for Medicaid payment for nursing

home care and is seeking spousal support in an amount that would exceed the spouse’s

CSMIA, should the spouse be required to notify the state Medicaid agency of the pending

proceeding?

Should the state Medicaid agency have the right to intervene in any legal proceeding in •

which a community spouse is seeking or has received spousal support in excess of the

spouse’s CSMIA?

May the state Medicaid agency le a motion seeking to modify or set aside a spousal •

support order that exceeds a spouse’s CSMIA?

Must the state Medicaid agency honor a confession of judgment or consent order for •

spousal support that exceeds a spouse’s CSMIA?

In determining whether to increase a spouse’s CMISA, how should the state •

Medicaid agency dene “exceptional circumstances” resulting in nancial duress?

What standards should the state Medicaid agency apply in determining •

whether to waive the MCCA’s CSRA limit for “undue hardship?”

May an institutionalized spouse be found eligible for Medicaid payment for nursing •

home care under the MCCA’s “spousal refusal” and “assignment of rights” exception?

If an institutionalized spouse is found eligible for Medicaid payment for nursing •

home care under the MCCA’s “spousal refusal” and “assignment of rights”

exception, may the state Medicaid agency attempt to obtain reimbursement

from the community spouse for the institutionalized spouse’s care?

In answering these questions lawyers judges and policymakers may look for guidance in the

statutory and case law of other states that is discussed in this bulletin and elsewhere But the

answers to these questions will not always be clear and the answers provided by other states

may not always be the right answers for North Carolina

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