§ 181.452. Posteligibility determination of income available from an MA eligible person toward the cost of care.
(a) The total gross income of an aged, blind or disabled MA eligible person’s income includes:
(1) The total earned income as specified in § § 181.91, 181.92, 181.95 and 181.96.
(2) The total unearned income as specified in § § 181.101—181.104, 181.107, 181.109 and 181.110.
(3) Aged, blind and disabled categories. Some income that is identified as excluded in Subchapter B (relating to aged, blind and disabled categories) is not excluded under this subchapter and is counted when determining the MA eligible person’s total gross income. This includes:
(i) The income exclusion as specified in § 181.122 (relating to earned income exclusion).
(ii) The income exclusions as specified in § 181.123 (relating to unearned income exclusions).
(4) Income from nontrust property. Unless the instrument specifically provides otherwise as follows:
(i) Payment of income made solely in the name of the institutionalized spouse or the community spouse is considered only available to that spouse.
(ii) Payment of income made in the names of both spouses is considered available in equal shares to each of them.
(iii) Payment of income made in the names of the institutionalized spouse or the community spouse, or both, and to another person is considered available to each spouse in proportion to the spouse’s interest, or if payment is made with respect to both spouses and no interest is specified, one-half of the joint interest is considered available to each spouse.
(5) Income from trust property.
(i) Income is considered available to each spouse as provided for in the trust.
(ii) In the absence of a specific provision in the trust, if payment of income is made solely to the institutionalized spouse or the community spouse, the income is considered available only to that spouse.
(iii) In the absence of a specific provision in the trust, if payment of income is made to both the institutionalized spouse and the community spouse, one-half of the income is considered available to each spouse.
(iv) In the absence of a specific provision in the trust, if payment of income is made to the institutionalized spouse or the community spouse, or both, and to another person, the income is considered available to each spouse in proportion to the spouse’s interest or, if payment is made with respect to both spouses and no interest is specified, one-half of the joint interest is considered available to each spouse.
(6) Income from property with no instrument. In the case of income not from a trust in which there is no instrument establishing ownership, subject to the requirements in paragraph (7), one-half of the income is considered available to the institutionalized spouse and one-half to the community spouse.
(7) Rebutting income ownership. The requirements in paragraphs (4) and (6) are superseded to the extent that an institutionalized spouse can establish, by a preponderance of evidence, that the ownership interests in income are other than as provided under those paragraphs.
(b) The total gross income of an TANF-related category and a GA-related category MA eligible person’s total income includes:
(1) The total earned income as specified in § § 181.271 and 181.272 (relating to gross earned income; and profit from self-employment).
(2) The total unearned income as specified in § § 181.281—181.285, 181.287 and 181.288.
(3) Income that is identified as a type of income that is not counted when determining MA eligibility is counted when determining the MA eligible person’s total gross income. This includes income specified in § 181.263 (relating to other types of income not counted for the TANF and GA categories).
(4) Income from nontrust property, unless the instrument specifically provides otherwise, as follows:
(i) Payment of income made solely in the name of the institutionalized spouse or the community spouse is considered only available to that spouse.
(ii) Payment of income made in the names of both spouses is considered available in equal shares to each of them.
(iii) Payment of income made in the names of the institutionalized spouse or the community spouse, or both, and to another person is considered available to each spouse in proportion to the spouse’s interest, or if payment is made with respect to both spouses and no interest is specified, one-half of the joint interest is considered available to each spouse.
(5) Income from trust property.
(i) Income is considered available to each spouse as provided for in the trust.
(ii) In the absence of a specific provision in the trust, if payment of income is made solely to the institutionalized spouse or the community spouse, the income is considered available only to that spouse.
(iii) In the absence of a specific provision in the trust, if payment of income is made to both the institutionalized spouse and the community spouse, one-half of the income is considered available to each spouse.
(iv) In the absence of a specific provision in the trust, if payment of income is made to the institutionalized spouse or the community spouse, or both, and to another person, the income is considered available to each spouse in proportion to the spouse’s interest or, if payment is made with respect to both spouses and no interest is specified, one-half of the joint interest is considered available to each spouse.
(6) Income from property with no instrument. In the case of income not from a trust in which there is no instrument establishing ownership, subject to the requirements in paragraph (7), one-half of the income is considered available to the institutionalized spouse and one-half to the community spouse.
(7) Rebutting income ownership. The requirements in paragraphs (4) and (6) are superseded to the extent that an institutionalized spouse can establish, by a preponderance of evidence, that the ownership interests in income are other than as provided under those paragraphs.
(c) For an MA eligible person in the aged, blind or disabled related categories or an MA eligible person in the TANF-related or GA-related categories, the veterans aid and attendance and housebound allowance portion of the Veterans Affairs pension as specified in § 181.81(9) (relating to items that are not income) is excluded and is not counted when determining the MA eligible person’s total gross income unless if the Veterans Administration states, in writing, that the benefit is for an incompetent veteran or incompetent spouse or child of a deceased veteran who is determined incompetent by the Veterans Administration and that the benefit shall be counted toward cost of care.
(d) The following amounts are deducted from the MA eligible person’s total gross income identified in subsection (a) for persons in the aged, blind and disabled-related categories, or subsection (b) for persons in the TANF-related or GA-related categories and adjusted as applicable by the treatment of Veterans Administration benefits under subsection (c) for all MA eligible persons in the following order:
(1) A personal needs allowance deduction for clothing and other personal needs while in the institution.
(i) A personal needs allowance deduction of $30 a month for one person, except for those persons as specified in subparagraphs (ii)—(v) who are in intermediate care facilities for the mentally retarded—ICF/MR—and have sheltered workshop earnings or other earnings from therapeutic activities arranged by the institution.
(ii) A personal needs allowance deduction of $50 a month for a person in an ICF/MR who has sheltered workshop earnings or other earnings from therapeutic activities arranged by the institution which do not exceed $50 gross per month.
(iii) A personal needs allowance deduction of $70 a month for a person in an ICF/MR who has sheltered workshop earnings or other earnings from therapeutic activities arranged by the institution which are more than $50 gross per month but do not exceed $90 gross per month.
(iv) A personal needs allowance deduction of $110 a month for a person in an ICF/MR who has sheltered workshop earnings or other earnings from therapeutic activities arranged by the institution which are more than $90 gross per month but do not exceed $150 gross per month.
(v) A personal needs allowance deduction of $110 a month plus 50% of the difference between the actual gross earnings and $150.01, subject to a maximum personal needs allowance deduction equal to the one person NMP-MA income limit in Appendix A if the person in an ICF/MR has sheltered workshop earnings or other earnings from therapeutic activities arranged by the institution which are more than $150 gross per month.
(2) If the MA-eligible person’s spouse remains at home, an amount for the maintenance needs of the spouse.
(i) The maintenance need for the spouse in the community is reduced by the community spouse’s available income. The available income is obtained by determining the community spouse’s total gross earned income as specified in § § 181.91—181.96 (relating to types of earned income counted for the aged, blind and disabled categories); the total gross unearned income as specified in § § 181.101—181.109.
(ii) The amount of the community spouse’s monthly available income is then compared to the monthly standard community spouse maintenance need allowance under 42 U.S.C.A. § 1396r-5(d)(3)(A) and (B) plus an excess shelter allowance for the couple’s principal residence. The excess monthly shelter allowance is the amount by which the actual monthly verified shelter expenses specified in subparagraph (iii) exceed the excess shelter standard in 42 U.S.C.A. § 1396r-5(d)(4)(A) and (B). The monthly standard community spouse maintenance need allowance and the excess monthly shelter standard will be changed effective July of each year based on 42 U.S.C.A. § 1396r-5(d)(3)(B). Revisions required by Federal law and regulations to the amounts will be published as a notice in the Pennsylvania Bulletin and will be made available upon request at the CAOs.
(iii) Actual verified monthly shelter expenses include rent, mortgage payment, including principal and interest, taxes and insurance, and the maintenance charge for a condominium or cooperative and an amount for utilities. The amount for utilities is one of the two standard utility allowances (SUAs) or the telephone cost only rate contained in the Department’s Food Stamp Handbook, Chapter 560, Income Deductions. The two SUAs are based on the standard utility allowance specified in section 5(e) of the Food Stamp Act of 1977 (Pub. L. 95-400, 92 Stat. 856) (September 30, 1978) and 7 CFR 273.9(d)(6) (relating to income and deductions) and are set forth in a waiver request approved by the United States Department of Agriculture, Food and Nutrition Service, under 7 CFR 272.3(c)(1)(ii) (relating to operating guidelines and forms). If all utility expenses including the telephone are included in the rent or the maintenance charge for a condominium or cooperative, no utility amount is deducted from the total determined in this subparagraph. Annual payments for items such as taxes and insurance shall be converted to a monthly figure.
(iv) The monthly payment of the community spouse maintenance need allowance may not exceed the maximum monthly community spouse maintenance need amount specified in 42 U.S.C.A. § 1396r-5(d)(3)(C) subject to adjustment under 42 U.S.C.A. § 1396r-5(g) unless the requirements in subparagraphs (ix) or (x) apply. Revisions required by Federal law and regulations to the amounts will be published as a notice in the Pennsylvania Bulletin and will be made available upon request at the CAOs.
(v) If the community spouse’s net monthly income is equal to, or exceeds, the amount determined in subparagraph (ii), no community spouse maintenance need allowance deduction is provided.
(vi) If the community spouse’s net monthly income is less than the amount determined in subparagraph (ii), the community spouse’s net monthly income is subtracted from the amount in subparagraph (ii) to determine the monthly community spouse maintenance need allowance. Only the amount actually provided to, or for the benefit of, the community spouse by the institutionalized spouse is deducted. The CAO is responsible for obtaining verification from the institutionalized spouse or someone acting on his behalf, in writing, of the amount the institutionalized spouse intends to give to the community spouse. The amount shall be verified by the CAO, in writing, at each application/reapplication or whenever the institutionalized spouse or someone acting on his behalf indicates, in writing, that the amount has changed.
(vii) The requirements in this paragraph no longer apply beginning the first full calendar month following changes in the couple’s circumstances which end the community spouse/institutionalized spouse relationship.
(viii) The community spouse maintenance need allowance may exceed the amount determined in subparagraph (ii) and the amount specified in subparagraph (iv) if a greater amount is ordered through a court support order under 42 U.S.C.A. § 1396r-5(d)(5).
(ix) The community spouse maintenance need allowance may exceed the amount determined in subparagraph (ii) and the amount specified in subparagraph (iv) if a greater amount is determined as a result of a Departmental hearing decision in which either spouse establishes that the community spouse needs income above the standard due to exceptional circumstances resulting in significant financial duress. The CAO shall review the increased income need established by the Departmental hearing decision at each application/reapplication or whenever a change in the circumstances that warranted the increase no longer exist.
(x) A written notice of the monthly community spouse maintenance need allowance and the right to appeal the amount shall be provided to both members of the couple.
(3) If the MA-eligible person has a community spouse and dependent children, dependent parents or dependent siblings of either member of the couple living at home with the community spouse, an amount for the maintenance needs of the other family members.
(i) A dependent child of either member of the couple who lives with the community spouse is a child of any age who is or may be claimed as a dependent by either member of the couple for tax purposes under the IRC.
(ii) A dependent parent is the parent of either member of the couple who lives with the community spouse and who is or may be claimed as a dependent by either member of the couple for tax purposes under the IRC.
(iii) A dependent sibling of either member of a couple which includes half-brothers, half-sisters and siblings by adoption who lives with the community spouse and who is or may be claimed as a dependent by either member of the couple for tax purposes under the IRC.
(iv) The family member maintenance need amount is reduced by the family member’s available income. The available income is obtained by determining the family member’s total gross earned income as specified in § § 181.91—181.96; the total gross unearned income as specified in § § 181.101—181.109. The income of a dependent child or a child regardless of age who is blind or disabled who does not receive SSI minus the exemptions specified in § 181.110(c) (relating to income deemed available from the spouse) shall also be obtained.
(v) In addition, if the child is a student, the child’s earned income up to $1,200 a calendar quarter, but not more than $1,620 per year is excluded.
(vi) The net amount of the dependent family member’s income is then compared to the standard monthly dependent family member maintenance allowance under 42 U.S.C.A. § 1396r-5(d)(1)(C) and (3)(A)(i). Revisions required by Federal law and regulations to the amounts will be published as a notice in the Pennsylvania Bulletin and will be made available upon request at the CAOs.
(vii) If the dependent family member’s income equals, or exceeds, the standard, no dependent family member maintenance need allowance deduction is provided.
(viii) If the dependent family member’s income is less than the standard, the dependent family member’s income is subtracted from the standard. The dependent family member’s maintenance need allowance deduction is 1/3 of the remaining amount.
(ix) The dependent family member’s maintenance need allowance deduction, which may not exceed the institutionalized spouse’s remaining available income, shall be deducted from the institutionalized spouse’s income even if the amount is not actually given to the family member by the institutionalized spouse.
(x) A written notice of the family member maintenance need allowance and the right to appeal the amount deducted shall be provided to both members of the couple.
(xi) The requirements in this paragraph no longer apply beginning the first full calendar month following changes in the dependent family member’s or the institutionalized spouse’s circumstances which end the dependent family member’s/institutionalized spouse’s relationship.
(4) If the MA-eligible person has no spouse in the community with whom he lived before being institutionalized but does have a dependent child or a disabled child, a dependent child maintenance need allowance is determined.
(i) A dependent child for this subsection is a child who is not married, not the head of a household, and is either 17 years of age or younger, or if a student, 21 years of age or younger and is or may be claimed as a dependent by the institutionalized person for tax purposes under the IRC.
(ii) A disabled child is a child who meets the eligibility conditions as a disabled person and is claimed as a dependent by the institutionalized person for tax purposes under the IRC.
(iii) The dependent child maintenance need allowance is reduced by the dependent/disabled child’s available income. The available income is obtained by determining the dependent/disabled child’s total gross earned income as specified in § § 181.91—181.96 and the total gross unearned income as specified in § § 181.101—181.109. The available income is also obtained by determining the income of a dependent child or a child regardless of age who is blind or disabled who does not receive SSI minus the exemptions specified in § 181.110(c). In addition, if the dependent child is a student, the child’s earned income up to $1,200 a calendar quarter, but not more than $1,620 per year, is excluded.
(iv) The net income of the dependent child is then compared to the one person MA income limit in Appendix C for the county in which the dependent child resides. If the dependent child resides out-of-State, the amount listed in Schedule No. 2 in Appendix C for one person is used.
(v) The net income of the disabled child is then compared to the one person MA income limit in Appendix A.
(vi) If the dependent or disabled child’s net income is less than the amount in subparagraph (iv) or (v), the dependent/disabled child’s maintenance need allowance is the difference between the net income and the amount in subparagraph (iv) or (v).
(vii) This amount, which may not exceed the institutionalized person’s remaining available income, is deducted from the institutionalized person’s income only if the amount is given to the dependent/disabled child. The CAO is responsible for obtaining verification from the institutionalized spouse or someone acting on his behalf, in writing, of the amount the institutionalized person intends to give to the dependent or disabled child. The amount shall be verified by the CAO, in writing, at each application/reapplication or whenever the institutionalized person or someone acting on the person’s behalf indicates, in writing, that the amount has changed.
(viii) A written notice of the dependent/disabled child maintenance need allowance and the right to appeal the amount shall be provided to the institutionalized person.
(ix) The requirements in this paragraph no longer apply beginning the first full calendar month following changes in the dependent/ disabled child’s or the institutionalized person’s circumstances which end the dependent/disabled child’s or institutionalized person’s relationship.
(5) The following medical expenses which are not subject to payment by a third party are deducted in the calendar month the medical expenses are paid.
(i) Medicare and other health insurance premiums, including enrollment fees, deductibles or coinsurance charges incurred by the MA eligible person.
(ii) Copayments or deductibles, including the amount an applicant/recipient participating in the Copayment Program is required to pay by the Department subject to the Department’s established copayment limit.
(iii) Expenses paid by the MA eligible person for necessary medical or remedial care recognized under State statutes or regulations but not covered under the MA Program.
(6) An amount for maintenance of a single MA eligible person’s home if a physician has certified that he is likely to return to his home within a 6-month period from the date he entered the facility. When this deduction is given, it may not be deducted for more than one 6-consecutive month period. The maintenance need amount for the single person is the MA income limit for one person in Appendix A. A home is defined as the residence maintained by the MA eligible person before he entered the facility and to which he plans to return. If a person is discharged and subsequently returns to a facility, the single MA eligible person is eligible for a new 6 consecutive month period for this deduction if a physician certifies that the person is likely to return to his home within a 6-month period from the date of admittance to the facility.
(e) The amount that the MA eligible person is expected to pay toward the cost of care is the amount that remains and as adjusted under subsection (c), if applicable, and after the deductions in subsection (d) are applied to the person’s total gross income as determined under subsections (a) and (b).
Authority The provisions of this § 181.452 issued under section 403(b) of the Public Welfare Code (62 P. S. § 403(b)); amended under sections 201, 403 and 443.1 of the Public Welfare Code (62 P. S. § § 201, 403 and 443.1).
Source The provisions of this § 181.452 adopted August 26, 1988, effective November 1, 1988, 18 Pa.B. 3949; amended February 15, 1991, effective March 1, 1991, 21 Pa.B. 624; amended August 16, 1991, effective August 17, 1991, 21 Pa.B. 3704; amended January 24, 1992, effective upon publication and apply retroactively to April 1, 1989, 22 Pa.B. 357; amended August 28, 1992, effective upon publication and apply retroactively to October 1, 1989, 22 Pa.B. 4432; corrected September 11, 1992, effective December 1, 1991, 22 Pa.B. 4627; corrected November 26, 1993, effective December 5, 1992, 23 Pa.B. 5639; amended June 19, 1998, effective June 20, 1998, and apply retroactively to March 1, 1991, 28 Pa.B. 2810; amended June 15, 2001, effective June 16, 2001, apply retroactively to June 1, 1994, 31 Pa.B. 3200. Immediately preceding text appears at serial pages (244848) to (244856).
Notes of Decisions Construction; No Deference to Agency
Although courts generally defer to an agency’s interpretation of regulatory text, where the meaning of a regulation is essentially a question of law for the court, and where the court deems the agency’s interpretation to be unwise or erroneous, that deference is unwarranted. Davis v. Department of Public Welfare, 776 A.2d 1026 (Pa. Cmwlth. 2001).
Exceptional Circumstances
In a case of first impression, the court held that deciding whether the community spouse needs income above the standard due to ‘‘exceptional circumstances,’’ requires that the circumstances be exceptional, not the expenses themselves. Davis v. Department of Public Welfare, 776 A.2d 1026 (Pa. Cmwlth. 2001).
Legislative Intent
The application of the ‘‘exceptional circumstances’’ standard is consistent with the intent of the public welfare statute, which is to enable the community spouse to reside in the community and prevent his impoverishment. Davis v. Department of Public Welfare, 776 A.2d 1026 (Pa. Cmwlth. 2001).
MMMNA Not Available Income
The minimum monthly maintenance needs allowed (MMMNA) of the community spouse is excluded from income available in determining whether the institutionalized spouse is eligible for Medicare Assistance. Davis v. Department of Public Welfare, 776 A.2d 1026 (Pa. Cmwlth. 2001).
Proof
The community spouse must present proof that specific expenses are ‘‘exceptional circumstances resulting in significant financial duress’’ in order to be granted an increase in the MMMNA. The fact that the community spouse’s repayment obligation of unreimbursed medical expenses is 80% of her remaining disposable income is the type of exceptional circumstance creating financial duress contemplated by the General Assembly. Therefore, the hearing officer’s focus on the nature of the expense, rather than on the community spouse’s exceptional circumstances, was improper. Davis v. Department of Public Welfare, 776 A.2d 1026 (Pa. Cmwlth. 2001).
Cross References This section cited in 55 Pa. Code § 178.124 (relating to resource eligibility for the institutionalized spouse); 55 Pa. Code § 181.81 (relating to items that are not income); and 55 Pa. Code § 181.453 (relating to determination of MA payment toward cost of care in institutions).
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