Commonwealth of Massachusetts Executive Office of Health and Human Services Office of Medicaid 600 Washington Street Boston, MA 02111 www.mass.gov/masshealth MassHealth Eligibility Letter 172 December 15, 2007 TO: MassHealth Staff FROM: Tom Dehner, Medicaid Director RE: Revisions to Regulations about the Asset Allowance MassHealth is revising the regulations about the adjustment of the community spouse’s asset allowance as a result of a fair hearing. The fair-hearing officer will include the amount of the income that would be generated by the spouse’s asset allowance if $10,000 of the asset allowance were invested in an account and generating income equal to the yield quoted in the Bank Rate Monitor Index as of the hearing date for money market accounts, and if the remainder of the spouse’s asset allowance were invested in an account and generating income equal to the highest yield quoted in the Bank Rate Monitor Index as of the hearing date for any term not to exceed two and one-half years. These regulations are being issued as emergency regulations, effective December 15, 2007. MANUAL UPKEEP Insert Remove Trans. By 520.017 (1 of 2) 520.017 (1 of 2) E.L. 107 520.017 (2 of 2) 520.017 (2 of 2) E.L. 107 130 CMR: DIVISION OF MEDICAL ASSISTANCE Trans. by E.L. 172 Rev. 12/15/07 MASSHEALTH FINANCIAL ELIGIBILITY Chapter 520 Page 520.017 (1 of 2) (e) After the initial 90-day period or the extension is over, the MassHealth agency counts all assets that remain in the institutionalized spouse's name in determining his or her eligibility. (4) Retroactive Eligibility. In determining the eligibility of the institutionalized spouse for the three-month retroactive period before application in a continuous period of institutionalization, the MassHealth agency deducts the amount defined in 130 CMR 520.016(B)(2) from the couple's total countable assets. (5) Eligibility of the Community Spouse. The amount defined in 130 CMR 520.016(B)(2) must be counted in determining the community spouse's eligibility for MassHealth. 520.017: Right to Appeal the Asset Allowance or Minimum-Monthly-Maintenance- Needs Allowance (A) Request for an Adjustment to the Community Spouse's Asset Allowance. After the institutionalized spouse has applied for MassHealth Standard and has received a notice of approval or denial for MassHealth Standard, either spouse may appeal to the Board of Hearings to request an adjustment to the asset allowance. The purpose of the adjustment is to generate sufficient income, as determined by the MassHealth agency, for the community spouse to remain in the community. (B) Minimum-Monthly-Maintenance-Needs Allowance. The minimum-monthly- maintenance-needs allowance is the amount needed by the community spouse to remain in the community. This amount is based on a calculation that includes the community spouse's shelter and utility costs in addition to certain federal standards, in accordance with 130 CMR 520.026(B)(1). (C) Adjustment of the Amount of Asset Allowance. If either spouse claims at a fair hearing that the amount of income generated by the community spouse's asset allowance as determined by the MassHealth agency is inadequate to raise the community spouse's income to the minimum-monthly-maintenance-needs allowance, the fair-hearing officer determines the gross income available to the community spouse as follows. (1) The fair-hearing officer determines the gross amount of income available to the community spouse. The fair-hearing officer includes the amount of the income that would be generated by the spouse’s asset allowance if $10,000 of the asset allowance were generating income at an interest rate equal to the deposit yield quoted in the Bankrate Monitor national index as of the hearing date for money market accounts, and if the remainder of the spouse’s asset allowance were generating income at an interest rate equal to the highest deposit yield quoted in the Bank Rate Monitor national index as of the hearing date for any term not to exceed two and one-half years. (2) If the community spouse’s gross income under 130 CMR 520.017(C)(1) is less than the minimum-monthly-maintenance-needs allowance (MMMNA), then the fair- hearing officer allows an amount of income from the institutionalized spouse (after the personal-needs deduction described in 130 CMR 520.026(A)) that would increase the community spouse’s total income to equal, but not to exceed, the MMMNA. 130 CMR 520.017(C)(2) applies to all hearings held on or after September 1, 2003, regardless of the date of application. (3) If after the fair-hearing officer has increased the community spouse’s gross income under 130 CMR 520.017(C)(1) and (2), the community spouse’s gross income is still less than the 130 CMR: DIVISION OF MEDICAL ASSISTANCE Trans. by E.L. 172 Rev. 12/15/07 MASSHEALTH FINANCIAL ELIGIBILITY Chapter 520 Page 520.017 (2 of 2) MMMNA, then the fair-hearing officer increases the community spouse’s asset allowance by the amount of additional assets that, if generating income at an interest rate equal to the highest deposit yield in the Bankrate Monitor national index as of the hearing date for any term not to exceed two and one- half years, would generate sufficient income to raise the income total to the MMMNA. (D) Adjustment to the Minimum-Monthly-Maintenance-Needs Allowance Due to Exceptional Circumstances. After the institutionalized spouse has received notice of either approval or denial for MassHealth Standard, either spouse may appeal to the Board of Hearings the calculation of income available to the community spouse and request an increase in the MMMNA, based on exceptional circumstances, as defined in 130 CMR 520.017(D)(1). (1) Exceptional Circumstances. Exceptional circumstances exist when there are circumstances other than those already taken into account in establishing the maintenance standards for the community spouse under 130 CMR 520.026(B) and these circumstances result in significant financial duress. Since the federal standards used in calculating the MMMNA cover such necessities as food, shelter, clothing, and utilities, exceptional circumstances are limited to those necessities that arise from the medical condition, frailty, or similar special needs of the community spouse. Such necessities include, but are not limited to, special remedial and support services and extraordinary uncovered medical expenses. Such expenses generally do not include car payments, even if the car is used for transportation to medical appointments, or home-maintenance expenses such as security systems and lawn care. (a) In determining an increased MMMNA, the fair-hearing officer ensures that no expense (for example, for food or utilities) is counted more than once in the calculation. (b) If the community spouse lives in an assisted-living facility or similar facility and requests an increase in his or her minimum-monthly-maintenance- needs allowance, the fair-hearing officer reviews the housing agreement, service plan, fee schedule, and other pertinent documents to determine whether exceptional circumstances exist. Additional amounts are allowed only for specific expenses necessitated by exceptional circumstances of the community spouse and not for maintaining any pre-set standard of living. (2) Determination of Increase for Exceptional Circumstances. If the fair- hearing officer determines that exceptional circumstances exist, the fair- hearing officer may increase the community spouse’s MMMNA to meet the expenses caused by the exceptional circumstances as follows. (a) The fair-hearing officer first verifies that the calculation of the gross income of the community spouse in determining the existing spousal-maintenance- needs deduction includes the income generated by the community spouse’s asset allowance. If the community spouse has no assets remaining from the allowance, he or she must verify the dollar amount of the remaining assets, if any, and how the money was spent. The fair-hearing officer considers how the assets were spent in determining whether or not significant financial duress exists. (b) The fair-hearing officer determines the revised MMMNA by including in the calculation the amount needed to meet the exceptional circumstances.