The concept of a community spouse being able to refuse to support their institutionalized counterpart comes from 42 U.S.C.A. § 1396r-5(c)(3).- The law gives three situations where Medicaid benefits cannot be denied in certain situations such as the failure to provide documentation about the community spouse’s records or the couple having excess resources above the CSRA.
The three situations mentioned above include:
- The institutionalized spouse has assigned to the State any rights to support from the community spouse;
- The institutionalized spouse lacks the ability to execute an assignment due to physical or mental impairment but the State has the right to bring a support proceeding against a community spouse without such assignment; or
- The State determines that denial of eligibility would work on undue hardship.
The authority in support of the above situations can also be found at CMS State Medicaid Manual § 3262.2(D). There are no corresponding federal regulations.
New Jersey’s position is that couples need to be estranged from one another, along with the community spouse refusing to cooperate with the CBSS, before spousal refusal will be considered. This changed in 2019, where the Appellate Division of state court threw out the estrangement requirement, given that NJ(DMAHS) could not cite to any legal authority for its position. The court concluded that where the applicant’s spouse refused to provide the County or the applicant’s guardian financial information because “it was causing her stress,” and the applicant signed a Declaration and Assignment of Spousal Support Rights, spousal refusal was appropriate and should have been considered.
In an administrative law case, D.Y. v. Morris County, the petitioner argued that the denial of spousal refusal was improperly withheld. Here, the couple was estranged, “there was literally no financial relationship between the applicant and spouse and the spouse had not been for well more than a decade, neither spouse or her POA were going to cooperate with the requests for information, and their non-cooperation…was” continuous. They claimed spousal refusal was appropriate. DMAHS agreed with the position, stating it would consider waiving a resource assessment “in certain instances when there has been a break in the marital ties. A waiver can also be granted in cases where the spouse is deceased but it cannot be verified, the couple is divorced but it cannot be verified, the spouse in uncooperative or the spouse’s whereabouts are unknown.”
However, a federal court in Connecticut ruled that when the institutionalized spouse assigns his or her rights to the State to pursue support against the community spouse, that alone by the plain reading of the federal statute is sufficient to justify a finding of spousal refusal. A District Court in Connecticut held that
[u]nder the federal statute, an institutionalized spouse cannot be denied Medicaid eligibility because of excess resources when he has assigned support rights to the state… When assignment is coupled with spousal refusal, existing law refuses to deny Medicaid eligibility because of excess resources even if the couple actually has resources in excess of the limits contemplated by lawmakers.There is no counterpart New Jersey federal district court decision on spousal refusal. Returning to N.J.’s requirement of hardship
“A determination of undue hardship should be a fact-sensitive inquiry taking into account the totality of the circumstances.”
If a spouse refuses to provide financial information and the institutionalized spouse assigns his right to support from him/her to the State, the undue hardship exception shouldn’t be applicable, and that waiver alone should be enough for the spouse to receive Medicaid benefits based on a plain reading of 42 U.S.C.A. § 1396r-5(c)(3).
To discuss your applying for Medicaid in NJ, please contact Fredrick P. Niemann, Esq. at (732) 863-9900 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Medicaid Attorney