Effective July 1, the State of New Jersey Division of Medical Assistance and health Services (DMAHS) has raised the Minimum Monthly Maintenance Allowance (MMMNA) for the spouse of a person who is on Medicaid. For residents of nursing homes, the general rule is that all of the resident’s income must be turned over to the facility as a cost-share, except for authorized deductions which include support of a spouse if the spouse’s own income is less than the Maintenance Allowance. The NJ MMMNA is now $1,991.25. The relevant regulation is N.J.A.C. 10:71-5.7, and here is the new MedCom No. 15-09, dated July 1m 2015.
In calculating the amount of this spousal support deduction, an excess shelter allowance is provided if shelter costs are in excess of $597.38. Also, if the spouse pays for utilities, a utility allowance of $491.00 per month is added to the base MMMNA.
Typically, these calculations are not done until after the applicant has been found to be resource-eligible (“after the spend-down”). This does not mean that all the excess assets have to be spent on the nursing home, and there are techniques available which we use regularly, that preserve substantial assets for support of the spouse.
Also, in some cases, the combined income of the spouses will not be enough to provide the spousal support amount. There is a special regulation for those cases, in which the community spouse can keep more assets than usual because the income is too low. N.J.A.C. 10:71-5.7(d) and N.J.A.C. 10:71-8.4. This is based on the federal statute at 42 USC 1396r-5(e)(2)(C). These issues have to be addressed at the earliest possible time, before the couple embarks on a spend-down. This protection of extra assets can only be obtained by going through a hearing process at the NJ Office of Administrative Law. New Jersey is an “income-first” state, which means that before the extra resources can be set aside for or transferred to the community spouse, all income must be made available. The U.S. Supreme Court dealt with this issue in Wisconsin Dep’t. of Health v. Blumer, 534 U.S. 473 at 484, 151 L. Ed.2d 935 at 946, 122 S. Ct. 962 at 969, 151 L. Ed.2d 935 (2002).
First, the income of the community spouse is applied toward their maintenance amount. Then, the income that the institutionalized spouse is earning or receiving (such as pension or Social Security retirement) at the time of the fair hearing is considered. If there is a pending receipt of income based on a prior award notice, that income would also be taken into account (such as where they had received notice that they would be receiving Social Security Disability income as of a certain date). If there is still a “gap,” there is a basis to ask for an increase in the community spouse resource allowance or CSRA to set aside additional resources for the community spouse.
Call us for legal advice on Medicaid eligibility and asset protection, and to prepare your medicaid applications and appeals … 732-382-6070