2007 Minnesota Statutes

256B.059 TREATMENT OF ASSETS WHEN A SPOUSE IS INSTITUTIONALIZED.
    Subdivision 1. Definitions. (a) For purposes of this section and section 256B.0595, the terms
defined in this subdivision have the meanings given them.
(b) "Community spouse" means the spouse of an institutionalized spouse.
(c) "Spousal share" means one-half of the total value of all assets, to the extent that either
the institutionalized spouse or the community spouse had an ownership interest at the time of
institutionalization.
(d) "Assets otherwise available to the community spouse" means assets individually or jointly
owned by the community spouse, other than assets excluded by subdivision 5, paragraph (c).
(e) "Community spouse asset allowance" is the value of assets that can be transferred under
subdivision 3.
(f) "Institutionalized spouse" means a person who is:
(1) in a hospital, nursing facility, or intermediate care facility for persons with developmental
disabilities, or receiving home and community-based services under section 256B.0915 or
256B.49, and is expected to remain in the facility or institution or receive the home and
community-based services for at least 30 consecutive days; and
(2) married to a person who is not in a hospital, nursing facility, or intermediate care facility
for persons with developmental disabilities, and is not receiving home and community-based
services under section 256B.0915 or 256B.49.
(g) "For the sole benefit of" means no other individual or entity can benefit in any way from
the assets or income at the time of a transfer or at any time in the future.
    Subd. 1a. Institutionalized spouse. The provisions of this section apply only when a spouse
is institutionalized for a continuous period beginning on or after October 1, 1989.
    Subd. 2. Assessment of spousal share. At the beginning of the first continuous period of
institutionalization of a person beginning on or after October 1, 1989, at the request of either the
institutionalized spouse or the community spouse, or upon application for medical assistance, the
total value of assets in which either the institutionalized spouse or the community spouse had an
interest at the time of the first period of institutionalization of 30 days or more shall be assessed
and documented and the spousal share shall be assessed and documented.
    Subd. 3. Community spouse asset allowance. An institutionalized spouse may transfer
assets to the community spouse for the sole benefit of the community spouse. Except for
increased amounts allowable under subdivision 4, the maximum amount of assets allowed to be
transferred is the amount which, when added to the assets otherwise available to the community
spouse, is as follows:
(1) prior to July 1, 1994, the greater of:
(i) $14,148;
(ii) the lesser of the spousal share or $70,740; or
(iii) the amount required by court order to be paid to the community spouse; and
(2) for persons whose date of initial determination of eligibility for medical assistance
following their first continuous period of institutionalization occurs on or after July 1, 1994,
the greater of:
(i) $20,000;
(ii) the lesser of the spousal share or $70,740; or
(iii) the amount required by court order to be paid to the community spouse.
If the assets available to the community spouse are already at the limit permissible under
this section, or the higher limit attributable to increases under subdivision 4, no assets may be
transferred from the institutionalized spouse to the community spouse. The transfer must be made
as soon as practicable after the date the institutionalized spouse is determined eligible for medical
assistance, or within the amount of time needed for any court order required for the transfer. On
January 1, 1994, and every January 1 thereafter, the limits in this subdivision shall be adjusted by
the same percentage change in the Consumer Price Index for All Urban Consumers (all items;
United States city average) between the two previous Septembers. These adjustments shall also be
applied to the limits in subdivision 5.
    Subd. 4. Increased community spouse asset allowance; when allowed. (a) If either the
institutionalized spouse or community spouse establishes that the community spouse asset
allowance under subdivision 3 (in relation to the amount of income generated by such an
allowance) is not sufficient to raise the community spouse's income to the minimum monthly
maintenance needs allowance in section 256B.058, subdivision 2, paragraph (c), there shall
be substituted for the amount allowed to be transferred an amount sufficient, when combined
with the monthly income otherwise available to the spouse, to provide the minimum monthly
maintenance needs allowance. A substitution under this paragraph may be made only if the assets
of the couple have been arranged so that the maximum amount of income-producing assets, at the
maximum rate of return, are available to the community spouse under the community spouse asset
allowance. The maximum rate of return is the average rate of return available from the financial
institution holding the asset, or a rate determined by the commissioner to be reasonable according
to community standards, if the asset is not held by a financial institution.
(b) The community spouse asset allowance under subdivision 3 can be increased by court
order or hearing that complies with the requirements of United States Code, title 42, section
1396r-5.
    Subd. 5. Asset availability. (a) At the time of initial determination of eligibility for medical
assistance benefits following the first continuous period of institutionalization on or after October
1, 1989, assets considered available to the institutionalized spouse shall be the total value of all
assets in which either spouse has an ownership interest, reduced by the following amount for the
community spouse:
(1) prior to July 1, 1994, the greater of:
(i) $14,148;
(ii) the lesser of the spousal share or $70,740; or
(iii) the amount required by court order to be paid to the community spouse;
(2) for persons whose date of initial determination of eligibility for medical assistance
following their first continuous period of institutionalization occurs on or after July 1, 1994,
the greater of:
(i) $20,000;
(ii) the lesser of the spousal share or $70,740; or
(iii) the amount required by court order to be paid to the community spouse.
The value of assets transferred for the sole benefit of the community spouse under section
256B.0595, subdivision 4, in combination with other assets available to the community spouse
under this section, cannot exceed the limit for the community spouse asset allowance determined
under subdivision 3 or 4. Assets that exceed this allowance shall be considered available to the
institutionalized spouse whether or not converted to income. If the community spouse asset
allowance has been increased under subdivision 4, then the assets considered available to the
institutionalized spouse under this subdivision shall be further reduced by the value of additional
amounts allowed under subdivision 4.
(b) An institutionalized spouse may be found eligible for medical assistance even though
assets in excess of the allowable amount are found to be available under paragraph (a) if the assets
are owned jointly or individually by the community spouse, and the institutionalized spouse
cannot use those assets to pay for the cost of care without the consent of the community spouse,
and if: (i) the institutionalized spouse assigns to the commissioner the right to support from the
community spouse under section 256B.14, subdivision 3; (ii) the institutionalized spouse lacks
the ability to execute an assignment due to a physical or mental impairment; or (iii) the denial of
eligibility would cause an imminent threat to the institutionalized spouse's health and well-being.
(c) After the month in which the institutionalized spouse is determined eligible for medical
assistance, during the continuous period of institutionalization, no assets of the community spouse
are considered available to the institutionalized spouse, unless the institutionalized spouse has
been found eligible under paragraph (b).
(d) Assets determined to be available to the institutionalized spouse under this section must
be used for the health care or personal needs of the institutionalized spouse.
(e) For purposes of this section, assets do not include assets excluded under the supplemental
security income program.
History: 1989 c 282 art 3 s 51; 1990 c 568 art 3 s 38,39; 1991 c 199 art 1 s 61; 1992 c
513 art 7 s 40,41; 1Sp1993 c 1 art 5 s 33,34; 1995 c 207 art 6 s 31-33; 1997 c 107 s 3-6; 2002
c 220 art 15 s 7-9; 2005 c 56 s 1