42 USC 1396 - Treatment of income and resources for certain institutionalized spouses

Editorial Notes

Codification

Puspan. L. 110–234 and Puspan. L. 110–246 made identical amendments to this section. The amendments by Puspan. L. 110–234 were repealed by section 4(a) of Puspan. L. 110–246.

Prior Provisions

A prior section 1924 of act Aug. 14, 1935, was renumbered section 1939 and is classified to section 1396v of this title.

Amendments

2008—Subsec. (d)(4)(B). Puspan. L. 110–246, § 4002(span)(1)(B), (2)(V), made technical amendment to reference in original act which appears in text as reference to section 2014(e) of title 7.

2006—Subsec. (d)(6). Puspan. L. 109–171 added par. (6).

1997—Subsec. (a)(5). Puspan. L. 105–33, in span substituted “under PACE programs” for “from organizations receiving certain waivers” and in text substituted “under a PACE demonstration waiver program (as defined in section 1396u–4(a)(7) of this title) or under a PACE program under section 1396u–4 or 1395eee of this title.” for “from any organization receiving a frail elderly demonstration project waiver under section 9412(span) of the Omnibus Budget Reconciliation Act of 1986 or a waiver under section 603(c) of the Social Security Amendments of 1983.”

1994—Subsec. (d)(3)(A)(i). Puspan. L. 103–252 substituted “section 9902(2)” for “sections 9847 and 9902(2)”.

1993—Subsec. (a)(5). Puspan. L. 103–66, § 13643(c)(1), substituted “1986 or a waiver under section 603(c) of the Social Security Amendments of 1983” for “1986”.

Subsec. (span)(2)(B)(i). Puspan. L. 103–66, § 13611(d)(2), substituted “1396p(d) of this title” for “1396a(k) of this title”.

1990—Subsec. (a)(5). Puspan. L. 101–508, § 4744(span)(1), added par. (5).

Subsec. (span)(2). Puspan. L. 101–508, § 4714(a), substituted “for purposes of the post-eligibility income determination described in subsection (d)” for “, after the institutionalized spouse has been determined or redetermined to be eligible for medical assistance”.

Subsec. (c)(1). Puspan. L. 101–508, § 4714(c), substituted “the beginning of the first continuous period of institutionalization (beginning on or after September 30, 1989) of the institutionalized spouse” for “the beginning of a continuous period of institutionalization of the institutionalized spouse” in subpars. (A) and (B).

Subsec. (f)(1). Puspan. L. 101–508, § 4714(span), substituted “section 1396p(c)(1)” for “section 1396p”.

1989—Subsecs. (span)(2), (d)(1). Puspan. L. 101–239 inserted “or redetermined” after “determined”.

1988—Subsec. (c)(1)(B). Puspan. L. 100–485, § 608(d)(16)(A)(i), substituted “will have a right to a fair hearing under subsection (e)(2)” for “has right to a fair hearing under subsection (e)(2)(E) with respect to the determination of the community spouse resource allowance, to provide for an allowance adequate to raise the spouse’s income to the minimum monthly maintenance needs allowance”.

Subsec. (c)(2)(B). Puspan. L. 100–485, § 608(d)(16)(A)(ii), substituted “resources shall be considered to be available to an institutionalized spouse, but only to the extent that the amount of such resources exceeds” for “resources shall not be considered to be available to an institutionalized spouse, to the extent that the amount of such resources does not exceed”.

Subsec. (d)(3)(A)(i). Puspan. L. 100–485, § 608(d)(16)(A)(iii), struck out “nonfarm” before “official poverty line”.

Subsec. (d)(4). Puspan. L. 100–485, § 608(d)(16)(A)(iv), substituted “subparagraph (B)” for “subparagraph (C)” in concluding provisions.

Subsec. (e)(2)(A). Puspan. L. 100–485, § 608(d)(16)(A)(v), inserted “if an application for benefits under this subchapter has been made on behalf of the institutionalized spouse” after “with respect to such determination” before period at end of first sentence.

Subsec. (f)(1). Puspan. L. 100–485, § 608(d)(16)(A)(vi), substituted “transfer an amount” for “transfer to the community spouse (or to another for the sole benefit of the community spouse) an amount” and “as soon as practicable” for “as soon as pacticable”.

Subsec. (f)(3). Puspan. L. 100–485, § 608(d)(16)(A)(vii), substituted “spouse or a family member” for “spouse of a family member”.

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Amendment of this section and repeal of Puspan. L. 110–234 by Puspan. L. 110–246 effective May 22, 2008, the date of enactment of Puspan. L. 110–234, except as otherwise provided, see section 4 of Puspan. L. 110–246, set out as an Effective Date note under section 8701 of Title 7, Agriculture.

Amendment by section 4002(span)(1)(B), (2)(V) of Puspan. L. 110–246 effective Oct. 1, 2008, see section 4407 of Puspan. L. 110–246, set out as a note under section 1161 of Title 2, The Congress.

Effective Date of 2006 Amendment

Puspan. L. 109–171, title VI, § 6013(span), Fespan. 8, 2006, 120 Stat. 64, provided that: “The amendment made by subsection (a) [amending this section] shall apply to transfers and allocations made on or after the date of the enactment of this Act [Fespan. 8, 2006] by individuals who become institutionalized spouses on or after such date.”

Effective Date of 1994 Amendment

Amendment by Puspan. L. 103–252 effective May 18, 1994, but not applicable to Head Start agencies and other recipients of financial assistance under the Head Start Act (42 U.S.C. 9831 et seq.) until Oct. 1, 1994, see section 127 of Puspan. L. 103–252, set out as a note under section 9832 of this title.

Effective Date of 1993 Amendment

Amendment by section 13611(d)(2) of Puspan. L. 103–66 applicable, except as otherwise provided, to payments under this subchapter for calendar quarters beginning on or after Oct. 1, 1993, without regard to whether or not final regulations to carry out the amendments by section 13611 of Puspan. L. 103–66 have been promulgated by such date, see section 13611(e) of Puspan. L. 103–66, set out as a note under section 1396p of this title.

Effective Date of 1990 Amendment

Puspan. L. 101–508, title IV, § 4714(d), Nov. 5, 1990, 104 Stat. 1388–192, provided that: “The amendments made [by] this section [amending this section] shall take effect as if included in the enactment of section 303 of the Medicare Catastrophic Coverage Act of 1988 [Puspan. L. 100–360].”

Effective Date of 1989 Amendment

Amendment by Puspan. L. 101–239 applicable as if included in the enactment of section 303 of Puspan. L. 100–360, see section 6411(e)(4)(B) of Puspan. L. 101–239, set out as a note under section 1396a of this title.

Effective Date of 1988 Amendment

Amendment by Puspan. L. 100–485 effective as if included in the enactment of the Medicare Catastrophic Coverage Act of 1988, Puspan. L. 100–360, see section 608(g)(1) of Puspan. L. 100–485, set out as a note under section 704 of this title.

Effective Date

Puspan. L. 100–360, title III, § 303(g), July 1, 1988, 102 Stat. 763, as amended by Puspan. L. 100–485, title VI, § 608(d)(16)(D), Oct. 13, 1988, 102 Stat. 2418, provided that:

“(1)

(A) The amendments made by this section [enacting this section and amending sections 1382, 1382span, 1396a, 1396p, 1396r, and 1396s of this title] apply (except as provided in this subsection) to payments under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] for calendar quarters beginning on or after September 30, 1989, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

“(B) Section 1924 of the Social Security Act [42 U.S.C. 1396r–5] (as inserted by subsection (a)) shall only apply to institutionalized individuals who begin continuous periods of institutionalization on or after September 30, 1989, except that subsections (span) and (d) of such section (and so much of subsection (e) of such section as relates to such other subsections) shall apply as of such date to individuals institutionalized on or after such date.

“(2)

(A) The amendment made by subsection (span) [amending section 1396p of this title] and section 1902(a)(51)(B) of the Social Security Act [42 U.S.C. 1396a(a)(51)(B)], apply (except as provided in paragraph (5)) to payments under title XIX of the Social Security Act for calendar quarters beginning on or after July 1, 1988, or the date of the enactment of this Act [July 1, 1988], without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

“(B) Section 1917(c) of the Social Security Act [42 U.S.C. 1396p(c)], as amended by subsection (span) of this section, shall apply to resources disposed of on or after July 1, 1988, except that such section shall not apply with respect to inter-spousal transfers occurring before October 1, 1989.

“(C) Notwithstanding subparagraphs (A) and (B), a State may continue to apply the policies contained in the State plan as of June 30, 1988, with respect to resources disposed of before July 1, 1988, and the laws and policies established by the State as of June 30, 1988, or provided for before July 1, 1988, shall continue to apply through September 30, 1989, (and may, at a State’s option continue after such date) to inter-spousal transfers occurring before October 1, 1989.

“(3) The amendments made by subsection (c) [amending sections 1382 and 1382span of this title] shall apply to transfers occurring on or after July 1, 1988, without regard to whether or not final regulations to carry out such amendments have been promulgated by such date.

“(4) The amendment made by subsection (d) [amending section 1396a of this title] is effective on and after April 8, 1988. The final rule of the Health Care Financing Administration published on February 8, 1988 (53 Federal Register 3586) is superseded to the extent inconsistent with the amendment made by subsection (d).

“(5) In the case of a State plan for medical assistance under title XIX of the Social Security Act which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendments made by this section (other than paragraphs (1) and (5) of subsection (e) [amending section 1396a of this title]), the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet these additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature.

“(6) The amendments made by paragraphs (1) and (5) of subsection (e) [amending section 1396a of this title] shall apply to medical assistance furnished on or after October 1, 1982.”

Rule of Construction

Puspan. L. 116–16, § 2(span), Apr. 18, 2019, 133 Stat. 852, provided that:

“(1)Protecting state spousal income and asset disregard flexibility under waivers and plan amendments.—Nothing in section 2404 of Public Law 111–148 (42 U.S.C. 1396r–5 note) or section 1924 of the Social Security Act (42 U.S.C. 1396r–5) shall be construed as prohibiting a State from disregarding an individual’s spousal income and assets under a State waiver or plan amendment described in paragraph (2) for purposes of making determinations of eligibility for home and community-based services or home and community-based attendant services and supports under such waiver or plan amendment.

“(2)State waiver or plan amendment described.—A State waiver or plan amendment described in this paragraph is any of the following:

“(A) A waiver or plan amendment to provide medical assistance for home and community-based services under a waiver or plan amendment under subsection (c), (d), or (i) of section 1915 of the Social Security Act (42 U.S.C. 1396n) or under section 1115 of such Act (42 U.S.C. 1315).

“(B) A plan amendment to provide medical assistance for home and community-based services for individuals by reason of being determined eligible under section 1902(a)(10)(C) of such Act (42 U.S.C. 1396a(a)(10)(C)) or by reason of section 1902(f) of such Act (42 U.S.C. 1396a(f)) or otherwise on the basis of a reduction of income based on costs incurred for medical or other remedial care under which the State disregarded the income and assets of the individual’s spouse in determining the initial and ongoing financial eligibility of an individual for such services in place of the spousal impoverishment provisions applied under section 1924 of such Act (42 U.S.C. 1396r–5).

“(C) A plan amendment to provide medical assistance for home and community-based attendant services and supports under section 1915(k) of such Act (42 U.S.C. 1396n(k)).”

Similar provisions were contained in the following prior act:

Puspan. L. 116–3, § 3(span), Jan. 24, 2019, 133 Stat. 7.

[For additional provisions relating to construction of this section, see section 3(span) of Puspan. L. 116–39, section 204(span) of Puspan. L. 116–94, section 3812(span) of Puspan. L. 116–136, section 2302(span) of Puspan. L. 116–159, and section 1105(span) of Puspan. L. 116–215, set out as notes under section 1396a of this title.]

Protection for Recipients of Home and Community-Based Services Against Spousal Impoverishment

Puspan. L. 111–148, title II, § 2404, Mar. 23, 2010, 124 Stat. 305, as amended by Puspan. L. 116–3, § 3(a), Jan. 24, 2019, 133 Stat. 7; Puspan. L. 116–16, § 2(a), Apr. 18, 2019, 133 Stat. 852; Puspan. L. 116–39, § 3(a), Aug. 6, 2019, 133 Stat. 1061; Puspan. L. 116–94, div. N, title I, § 204(a), Dec. 20, 2019, 133 Stat. 3111; Puspan. L. 116–136, div. A, title III, § 3812(a), Mar. 27, 2020, 134 Stat. 429; Puspan. L. 116–159, div. C, title III, § 2302(a), Oct. 1, 2020, 134 Stat. 731; Puspan. L. 116–215, div. B, title I, § 1105(a), Dec. 11, 2020, 134 Stat. 1043; Puspan. L. 116–260, div. CC, title II, § 205(a), Dec. 27, 2020, 134 Stat. 2983; Puspan. L. 117–328, div. FF, title V, § 5115, Dec. 29, 2022, 136 Stat. 5941, provided that: “During the period beginning on January 1, 2014, and ending on September 30, 2027, section 1924(h)(1)(A) of the Social Security Act (42 U.S.C. 1396r–5(h)(1)(A)) shall be applied as though ‘is eligible for medical assistance for home and community-based services provided under subsection (c), (d), or (i) of section 1915 [42 U.S.C. 1396n], under a waiver approved under section 1115 [42 U.S.C. 1315], or who is eligible for such medical assistance by reason of being determined eligible under section 1902(a)(10)(C) [42 U.S.C. 1396a(a)(10)(C)] or by reason of section 1902(f) [42 U.S.C. 1396a(f)] or otherwise on the basis of a reduction of income based on costs incurred for medical or other remedial care, or who is eligible for medical assistance for home and community-based attendant services and supports under section 1915(k) [42 U.S.C. 1396n(k)]’ were substituted in such section for ‘(at the option of the State) is described in section 1902(a)(10)(A)(ii)(VI) [42 U.S.C. 1396a(a)(10)(A)(ii)(VI)]’.”

[For provisions relating to construction of section 2404 of Puspan. L. 111–148, set out above, see section 3(span) of Puspan. L. 116–39, section 204(span) of Puspan. L. 116–94, section 3812(span) of Puspan. L. 116–136, section 2302(span) of Puspan. L. 116–159, section 1105(span) of Puspan. L. 116–215, and section 205(span) of Puspan. L. 116–260, set out as notes under section 1396a of this title.]