Saturday, September 11, 2010

Community Spouse Denied Increase in income allowance.

By Jeffrey A. Marshall

Sonja Kuznick’s husband was a resident in Buckingham Valley Nursing Facility, in Bucks County, Pennsylvania. Mr. Kuznick was granted Medicaid (Medical Assistance) benefits to help pay for his care.

Generally, a nursing home resident on Medicaid must contribute most of his income toward the cost of his care, with Medicaid picking up the balance. But Federal and State Medicaid rules provide “spousal impoverishment” income protections for a “community spouse” like Sonja. Under 42 U.S.C. 1396r-5(b)(1), Sonja is permitted to keep all of her income. “The community spouse’s income is thus preserved for that spouse and does not affect the determination whether the institutionalized spouse qualifies for Medicaid.” Wisconsin Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, at 481 (2002).

Federal law mandates that if the income of the community spouse does not meet a minimum level the amount of the shortfall can be diverted to the community spouse from the income of the institutionalized spouse instead of being paid to the nursing home (42 U.S.C. 1396r-5(d)(1)(B)). This minimum protected level of income for the community spouse is called the Minimum Monthly Maintenance Needs allowance (MMMNA). (For my explanation of how the MMMNA is calculated click here).

The basic MMMNA allowance can be increased if there are “exceptional circumstances resulting in significant financial duress” to the community spouse. 42 U.S.C. 1396r-5(d). Sonja Kuznick sought to use this provision of the law to have some of her husband’s income diverted to her. Sonja claimed that she was unable to pay her bills and was being dunned by credit care agencies and could not even make the minimum payments on those credit cards.

In Kuznick v. DPW, decided September 9, 2010, the Pennsylvania Commonwealth Court held that Sonja had the burden of proving the existence of exceptional circumstances which would justify an increase in her allowance. She failed to meet this burden.  

The Court noted that not all types of expenses that may create financial duress for a community spouse will constitute exceptional circumstance. “Kuznick has not substantiated her claim with clear evidence indicating that her monthly disposable income places her in jeopardy of living an impoverished existence.” A community spouse must prove not only financial duress but also establish “the type of exceptional circumstances that would warrant an increase in her MMMNA.”  The court suggested that “lifestyle choice” related expenses and expenses for non-essential activity, such as trips, do not provide a basis for an income increase even if they cause financial duress.   

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