Eligibility for public assistance, how determined--means test--certainmedical assistance benefits to include payment of deductible andcoinsurance--prevention of spousal impoverishments, division ofassets, community spouse defined--burial lots defined--diversion ofinstitutionalized spouse's income.
208.010. 1. In determining the eligibility of a claimant for publicassistance pursuant to this law, it shall be the duty of the division offamily services to consider and take into account all facts andcircumstances surrounding the claimant, including his or her livingconditions, earning capacity, income and resources, from whatever sourcereceived, and if from all the facts and circumstances the claimant is notfound to be in need, assistance shall be denied. In determining the needof a claimant, the costs of providing medical treatment which may befurnished pursuant to sections 208.151 to 208.158 and 208.162 shall bedisregarded. The amount of benefits, when added to all other income,resources, support, and maintenance shall provide such persons withreasonable subsistence compatible with decency and health in accordancewith the standards developed by the division of family services; provided,when a husband and wife are living together, the combined income andresources of both shall be considered in determining the eligibility ofeither or both. "Living together" for the purpose of this chapter isdefined as including a husband and wife separated for the purpose ofobtaining medical care or nursing home care, except that the income of ahusband or wife separated for such purpose shall be considered indetermining the eligibility of his or her spouse, only to the extent thatsuch income exceeds the amount necessary to meet the needs (as defined byrule or regulation of the division) of such husband or wife livingseparately. In determining the need of a claimant in federally aidedprograms there shall be disregarded such amounts per month of earned incomein making such determination as shall be required for federal participationby the provisions of the federal Social Security Act (42 U.S.C.A. 301 etseq.), or any amendments thereto. When federal law or regulations requirethe exemption of other income or resources, the division of family servicesmay provide by rule or regulation the amount of income or resources to bedisregarded.
2. Benefits shall not be payable to any claimant who:
(1) Has or whose spouse with whom he or she is living has, prior toJuly 1, 1989, given away or sold a resource within the time and in themanner specified in this subdivision. In determining the resources of anindividual, unless prohibited by federal statutes or regulations, thereshall be included (but subject to the exclusions pursuant to subdivisions(4) and (5) of this subsection, and subsection 5 of this section) anyresource or interest therein owned by such individual or spouse within thetwenty-four months preceding the initial investigation, or at any timeduring which benefits are being drawn, if such individual or spouse gaveaway or sold such resource or interest within such period of time at lessthan fair market value of such resource or interest for the purpose ofestablishing eligibility for benefits, including but not limited tobenefits based on December, 1973, eligibility requirements, as follows:
(a) Any transaction described in this subdivision shall be presumedto have been for the purpose of establishing eligibility for benefits orassistance pursuant to this chapter unless such individual furnishesconvincing evidence to establish that the transaction was exclusively forsome other purpose;
(b) The resource shall be considered in determining eligibility fromthe date of the transfer for the number of months the uncompensated valueof the disposed of resource is divisible by the average monthly grant paidor average Medicaid payment in the state at the time of the investigationto an individual or on his or her behalf under the program for whichbenefits are claimed, provided that:
a. When the uncompensated value is twelve thousand dollars or less,the resource shall not be used in determining eligibility for more thantwenty-four months; or
b. When the uncompensated value exceeds twelve thousand dollars, theresource shall not be used in determining eligibility for more than sixtymonths;
(2) The provisions of subdivision (1) of this subsection shall notapply to a transfer, other than a transfer to claimant's spouse, made priorto March 26, 1981, when the claimant furnishes convincing evidence that theuncompensated value of the disposed of resource or any part thereof is nolonger possessed or owned by the person to whom the resource wastransferred;
(3) Has received, or whose spouse with whom he or she is living hasreceived, benefits to which he or she was not entitled throughmisrepresentation or nondisclosure of material facts or failure to reportany change in status or correct information with respect to property orincome as required by section 208.210. A claimant ineligible pursuant tothis subsection shall be ineligible for such period of time from the dateof discovery as the division of family services may deem proper; or in thecase of overpayment of benefits, future benefits may be decreased,suspended or entirely withdrawn for such period of time as the division maydeem proper;
(4) Owns or possesses resources in the sum of one thousand dollars ormore; provided, however, that if such person is married and living withspouse, he or she, or they, individually or jointly, may own resources notto exceed two thousand dollars; and provided further, that in the case of atemporary assistance for needy families claimant, the provision of thissubsection shall not apply;
(5) Prior to October 1, 1989, owns or possesses property of any kindor character, excluding amounts placed in an irrevocable prearrangedfuneral or burial contract pursuant to subsection 2 of section 436.035,RSMo, and subdivision (5) of subsection 1 of section 436.053, RSMo, or hasan interest in property, of which he or she is the record or beneficialowner, the value of such property, as determined by the division of familyservices, less encumbrances of record, exceeds twenty-nine thousanddollars, or if married and actually living together with husband or wife,if the value of his or her property, or the value of his or her interest inproperty, together with that of such husband and wife, exceeds such amount;
(6) In the case of temporary assistance for needy families, if theparent, stepparent, and child or children in the home owns or possessesproperty of any kind or character, or has an interest in property for whichhe or she is a record or beneficial owner, the value of such property, asdetermined by the division of family services and as allowed by federal lawor regulation, less encumbrances of record, exceeds one thousand dollars,excluding the home occupied by the claimant, amounts placed in anirrevocable prearranged funeral or burial contract pursuant to subsection 2of section 436.035, RSMo, and subdivision (5) of subsection 1 of section436.053, RSMo, one automobile which shall not exceed a value set forth byfederal law or regulation and for a period not to exceed six months, suchother real property which the family is making a good-faith effort to sell,if the family agrees in writing with the division of family services tosell such property and from the net proceeds of the sale repay the amountof assistance received during such period. If the property has not beensold within six months, or if eligibility terminates for any other reason,the entire amount of assistance paid during such period shall be a debt duethe state;
(7) Is an inmate of a public institution, except as a patient in apublic medical institution.
3. In determining eligibility and the amount of benefits to begranted pursuant to federally aided programs, the income and resources of arelative or other person living in the home shall be taken into account tothe extent the income, resources, support and maintenance are allowed byfederal law or regulation to be considered.
4. In determining eligibility and the amount of benefits to begranted pursuant to federally aided programs, the value of burial lots orany amounts placed in an irrevocable prearranged funeral or burial contractpursuant to subsection 2 of section 436.035, RSMo, and subdivision (5) ofsubsection 1 of section 436.053, RSMo, shall not be taken into account orconsidered an asset of the burial lot owner or the beneficiary of anirrevocable prearranged funeral or funeral contract. For purposes of thissection, "burial lots" means any burial space as defined in section214.270, RSMo, and any memorial, monument, marker, tombstone or lettermarking a burial space. If the beneficiary, as defined in chapter 436,RSMo, of an irrevocable prearranged funeral or burial contract receives anypublic assistance benefits pursuant to this chapter and if the purchaser ofsuch contract or his or her successors in interest cancel or amend thecontract so that any person will be entitled to a refund, such refund shallbe paid to the state of Missouri up to the amount of public assistancebenefits provided pursuant to this chapter with any remainder to be paid tothose persons designated in chapter 436, RSMo.
5. In determining the total property owned pursuant to subdivision(5) of subsection 2 of this section, or resources, of any person claimingor for whom public assistance is claimed, there shall be disregarded anylife insurance policy, or prearranged funeral or burial contract, or anytwo or more policies or contracts, or any combination of policies andcontracts, which provides for the payment of one thousand five hundreddollars or less upon the death of any of the following:
(1) A claimant or person for whom benefits are claimed; or
(2) The spouse of a claimant or person for whom benefits are claimedwith whom he or she is living.
If the value of such policies exceeds one thousand five hundred dollars,then the total value of such policies may be considered in determiningresources; except that, in the case of temporary assistance for needyfamilies, there shall be disregarded any prearranged funeral or burialcontract, or any two or more contracts, which provides for the payment ofone thousand five hundred dollars or less per family member.
6. Beginning September 30, 1989, when determining the eligibility ofinstitutionalized spouses, as defined in 42 U.S.C. Section 1396r-5, formedical assistance benefits as provided for in section 208.151 and 42U.S.C. Sections 1396a et seq., the division of family services shall complywith the provisions of the federal statutes and regulations. As necessary,the division shall by rule or regulation implement the federal law andregulations which shall include but not be limited to the establishment ofincome and resource standards and limitations. The division shall require:
(1) That at the beginning of a period of continuousinstitutionalization that is expected to last for thirty days or more, theinstitutionalized spouse, or the community spouse, may request anassessment by the division of family services of total countable resourcesowned by either or both spouses;
(2) That the assessed resources of the institutionalized spouse andthe community spouse may be allocated so that each receives an equal share;
(3) That upon an initial eligibility determination, if the communityspouse's share does not equal at least twelve thousand dollars, theinstitutionalized spouse may transfer to the community spouse a resourceallowance to increase the community spouse's share to twelve thousanddollars;
(4) That in the determination of initial eligibility of theinstitutionalized spouse, no resources attributed to the community spouseshall be used in determining the eligibility of the institutionalizedspouse, except to the extent that the resources attributed to the communityspouse do exceed the community spouse's resource allowance as defined in 42U.S.C. Section 1396r-5;
(5) That beginning in January, 1990, the amount specified insubdivision (3) of this subsection shall be increased by the percentageincrease in the Consumer Price Index for All Urban Consumers betweenSeptember, 1988, and the September before the calendar year involved; and
(6) That beginning the month after initial eligibility for theinstitutionalized spouse is determined, the resources of the communityspouse shall not be considered available to the institutionalized spouseduring that continuous period of institutionalization.
7. Beginning July 1, 1989, institutionalized individuals shall beineligible for the periods required and for the reasons specified in 42U.S.C. Section 1396p.
8. The hearings required by 42 U.S.C. Section 1396r-5 shall beconducted pursuant to the provisions of section 208.080.
9. Beginning October 1, 1989, when determining eligibility forassistance pursuant to this chapter there shall be disregarded unlessotherwise provided by federal or state statutes, the home of the applicantor recipient when the home is providing shelter to the applicant orrecipient, or his or her spouse or dependent child. The division of familyservices shall establish by rule or regulation in conformance withapplicable federal statutes and regulations a definition of the home andwhen the home shall be considered a resource that shall be considered indetermining eligibility.
10. Reimbursement for services provided by an enrolled Medicaidprovider to a recipient who is duly entitled to Title XIX Medicaid andTitle XVIII Medicare Part B, Supplementary Medical Insurance (SMI) shallinclude payment in full of deductible and coinsurance amounts as determineddue pursuant to the applicable provisions of federal regulations pertainingto Title XVIII Medicare Part B, except the applicable Title XIX costsharing.
11. A "community spouse" is defined as being the noninstitutionalizedspouse.
12. An institutionalized spouse applying for Medicaid and having aspouse living in the community shall be required, to the maximum extentpermitted by law, to divert income to such community spouse to raise thecommunity spouse's income to the level of the minimum monthly needsallowance, as described in 42 U.S.C. Section 1396r-5. Such diversion ofincome shall occur before the community spouse is allowed to retain assetsin excess of the community spouse protected amount described in 42 U.S.C.Section 1396r-5*.
*Original rolls contain "1396-r", a typographical error.
CROSS REFERENCE:
Spousal impoverishment or premature placement in institutional care, protection against by compliance with section 208.010, RSMo, in determination of Medicaid eligibility, RSMo 660.690
(1960) On application of individual for old age assistance where it was admitted that the applicant had turned over to his daughters certain amounts of money, the burden was upon him to show that he was indebted to such daughters and his failure to show it by convincing evidence was sufficient to authorize the denial of his application for benefits. Carlisle v. State Department of Public Health and Welfare (A.), 341 S.W.2d 617
(1962) Director of welfare acted arbitrarily in determining eligibility of claimant and failed to grant fair hearing by refusing to consider evidence as to equitable ownership of property. Claimant was not required to establish by court action that beneficial ownership of property was in another. Powers v. State Department of Public Health and Welfare (A.), 359 S.W.2d 33.
(1962) Claimant's execution of a deed of trust against his property to secure a loan for $2,000 of which $1,000 went to his daughter-in-law and balance was used to pay off claimant's prior indebtedness secured by the property and the interest payments were paid by daughter-in-law, did not render claimant ineligible for benefits. Dysart v. State Dept. of Public Health & Welfare (A.), 361 S.W.2d 347.
(1962) Director's decision that claimants were ineligible for old age assistance in that they had sold real estate in which they had one-half interest without receiving anything of value therefor was not supported where uncontradicted evidence was that claimants had been made joint tenants with their daughter to prevent daughter's divorced husband acquiring an interest therein and there was no evidence that claimants had paid anything on purchase price. Velghe v. State Dept. of Public Health and Welfare (A.), 362 S.W.2d 747.
(1964) Finding of director that applicant for old age assistance had transferred $1500 to daughter without receiving fair and valuable consideration was based upon substantial evidence and decision denying compensation was not unreasonable or arbitrary. Dunnegan v. Gallop (A.), 374 S.W.2d 407.
(1972) Finding by director of public health and welfare that transfer of life estate of 68 year old claimant in business building which was in state of disrepair and disuse and encumbered by $1,500 in back taxes for payment of $50 for each month of her life with a minimum total payment of $1,000 was made without fair and valuable consideration was arbitrary and unreasonable. Davis v. State Dept. of Public Health and Welfare (A.), S.W.2d 775.
(1973) Held, verbal promise to pay for land conveyed by deed is within statutory definition of "fair and valuable consideration." Hill v. State Dept. of Public Health & Welfare (Mo.banc), 503 S.W.2d 6.
(1975) Evidence held not to sustain a finding that property was transferred without fair and valuable consideration. Value of undivided interest of a cotenant out of possession is not necessarily one-half of market value. Brumit v. State Department of Public Health and Welfare (Mo.), 521 S.W.2d 445.
(1985) In determining entitlement to medical assistance to pay for the cost of residential care, the director may not consider the value of the assets of a spendthrift trust where the settlor intended that the payments from the trust to his retarded son were to supplement rather than supplant benefits to which the son would otherwise be entitled. Tidrow v. Director of Mo. State Division of Family Services (Mo.App.), 688 S.W.2d 9.
Eligibility for public assistance, how determined--means test--certainmedical assistance benefits to include payment of deductible andcoinsurance--prevention of spousal impoverishments, division ofassets, community spouse defined--burial lots defined--diversion ofinstitutionalized spouse's income.
208.010. 1. In determining the eligibility of a claimant for publicassistance pursuant to this law, it shall be the duty of the division offamily services to consider and take into account all facts andcircumstances surrounding the claimant, including his or her livingconditions, earning capacity, income and resources, from whatever sourcereceived, and if from all the facts and circumstances the claimant is notfound to be in need, assistance shall be denied. In determining the needof a claimant, the costs of providing medical treatment which may befurnished pursuant to sections 208.151 to 208.158 and 208.162 shall bedisregarded. The amount of benefits, when added to all other income,resources, support, and maintenance shall provide such persons withreasonable subsistence compatible with decency and health in accordancewith the standards developed by the division of family services; provided,when a husband and wife are living together, the combined income andresources of both shall be considered in determining the eligibility ofeither or both. "Living together" for the purpose of this chapter isdefined as including a husband and wife separated for the purpose ofobtaining medical care or nursing home care, except that the income of ahusband or wife separated for such purpose shall be considered indetermining the eligibility of his or her spouse, only to the extent thatsuch income exceeds the amount necessary to meet the needs (as defined byrule or regulation of the division) of such husband or wife livingseparately. In determining the need of a claimant in federally aidedprograms there shall be disregarded such amounts per month of earned incomein making such determination as shall be required for federal participationby the provisions of the federal Social Security Act (42 U.S.C.A. 301 etseq.), or any amendments thereto. When federal law or regulations requirethe exemption of other income or resources, the division of family servicesmay provide by rule or regulation the amount of income or resources to bedisregarded.
2. Benefits shall not be payable to any claimant who:
(1) Has or whose spouse with whom he or she is living has, prior toJuly 1, 1989, given away or sold a resource within the time and in themanner specified in this subdivision. In determining the resources of anindividual, unless prohibited by federal statutes or regulations, thereshall be included (but subject to the exclusions pursuant to subdivisions(4) and (5) of this subsection, and subsection 5 of this section) anyresource or interest therein owned by such individual or spouse within thetwenty-four months preceding the initial investigation, or at any timeduring which benefits are being drawn, if such individual or spouse gaveaway or sold such resource or interest within such period of time at lessthan fair market value of such resource or interest for the purpose ofestablishing eligibility for benefits, including but not limited tobenefits based on December, 1973, eligibility requirements, as follows:
(a) Any transaction described in this subdivision shall be presumedto have been for the purpose of establishing eligibility for benefits orassistance pursuant to this chapter unless such individual furnishesconvincing evidence to establish that the transaction was exclusively forsome other purpose;
(b) The resource shall be considered in determining eligibility fromthe date of the transfer for the number of months the uncompensated valueof the disposed of resource is divisible by the average monthly grant paidor average Medicaid payment in the state at the time of the investigationto an individual or on his or her behalf under the program for whichbenefits are claimed, provided that:
a. When the uncompensated value is twelve thousand dollars or less,the resource shall not be used in determining eligibility for more thantwenty-four months; or
b. When the uncompensated value exceeds twelve thousand dollars, theresource shall not be used in determining eligibility for more than sixtymonths;
(2) The provisions of subdivision (1) of this subsection shall notapply to a transfer, other than a transfer to claimant's spouse, made priorto March 26, 1981, when the claimant furnishes convincing evidence that theuncompensated value of the disposed of resource or any part thereof is nolonger possessed or owned by the person to whom the resource wastransferred;
(3) Has received, or whose spouse with whom he or she is living hasreceived, benefits to which he or she was not entitled throughmisrepresentation or nondisclosure of material facts or failure to reportany change in status or correct information with respect to property orincome as required by section 208.210. A claimant ineligible pursuant tothis subsection shall be ineligible for such period of time from the dateof discovery as the division of family services may deem proper; or in thecase of overpayment of benefits, future benefits may be decreased,suspended or entirely withdrawn for such period of time as the division maydeem proper;
(4) Owns or possesses resources in the sum of one thousand dollars ormore; provided, however, that if such person is married and living withspouse, he or she, or they, individually or jointly, may own resources notto exceed two thousand dollars; and provided further, that in the case of atemporary assistance for needy families claimant, the provision of thissubsection shall not apply;
(5) Prior to October 1, 1989, owns or possesses property of any kindor character, excluding amounts placed in an irrevocable prearrangedfuneral or burial contract pursuant to subsection 2 of section 436.035,RSMo, and subdivision (5) of subsection 1 of section 436.053, RSMo, or hasan interest in property, of which he or she is the record or beneficialowner, the value of such property, as determined by the division of familyservices, less encumbrances of record, exceeds twenty-nine thousanddollars, or if married and actually living together with husband or wife,if the value of his or her property, or the value of his or her interest inproperty, together with that of such husband and wife, exceeds such amount;
(6) In the case of temporary assistance for needy families, if theparent, stepparent, and child or children in the home owns or possessesproperty of any kind or character, or has an interest in property for whichhe or she is a record or beneficial owner, the value of such property, asdetermined by the division of family services and as allowed by federal lawor regulation, less encumbrances of record, exceeds one thousand dollars,excluding the home occupied by the claimant, amounts placed in anirrevocable prearranged funeral or burial contract pursuant to subsection 2of section 436.035, RSMo, and subdivision (5) of subsection 1 of section436.053, RSMo, one automobile which shall not exceed a value set forth byfederal law or regulation and for a period not to exceed six months, suchother real property which the family is making a good-faith effort to sell,if the family agrees in writing with the division of family services tosell such property and from the net proceeds of the sale repay the amountof assistance received during such period. If the property has not beensold within six months, or if eligibility terminates for any other reason,the entire amount of assistance paid during such period shall be a debt duethe state;
(7) Is an inmate of a public institution, except as a patient in apublic medical institution.
3. In determining eligibility and the amount of benefits to begranted pursuant to federally aided programs, the income and resources of arelative or other person living in the home shall be taken into account tothe extent the income, resources, support and maintenance are allowed byfederal law or regulation to be considered.
4. In determining eligibility and the amount of benefits to begranted pursuant to federally aided programs, the value of burial lots orany amounts placed in an irrevocable prearranged funeral or burial contractpursuant to subsection 2 of section 436.035, RSMo, and subdivision (5) ofsubsection 1 of section 436.053, RSMo, shall not be taken into account orconsidered an asset of the burial lot owner or the beneficiary of anirrevocable prearranged funeral or funeral contract. For purposes of thissection, "burial lots" means any burial space as defined in section214.270, RSMo, and any memorial, monument, marker, tombstone or lettermarking a burial space. If the beneficiary, as defined in chapter 436,RSMo, of an irrevocable prearranged funeral or burial contract receives anypublic assistance benefits pursuant to this chapter and if the purchaser ofsuch contract or his or her successors in interest cancel or amend thecontract so that any person will be entitled to a refund, such refund shallbe paid to the state of Missouri up to the amount of public assistancebenefits provided pursuant to this chapter with any remainder to be paid tothose persons designated in chapter 436, RSMo.
5. In determining the total property owned pursuant to subdivision(5) of subsection 2 of this section, or resources, of any person claimingor for whom public assistance is claimed, there shall be disregarded anylife insurance policy, or prearranged funeral or burial contract, or anytwo or more policies or contracts, or any combination of policies andcontracts, which provides for the payment of one thousand five hundreddollars or less upon the death of any of the following:
(1) A claimant or person for whom benefits are claimed; or
(2) The spouse of a claimant or person for whom benefits are claimedwith whom he or she is living.
If the value of such policies exceeds one thousand five hundred dollars,then the total value of such policies may be considered in determiningresources; except that, in the case of temporary assistance for needyfamilies, there shall be disregarded any prearranged funeral or burialcontract, or any two or more contracts, which provides for the payment ofone thousand five hundred dollars or less per family member.
6. Beginning September 30, 1989, when determining the eligibility ofinstitutionalized spouses, as defined in 42 U.S.C. Section 1396r-5, formedical assistance benefits as provided for in section 208.151 and 42U.S.C. Sections 1396a et seq., the division of family services shall complywith the provisions of the federal statutes and regulations. As necessary,the division shall by rule or regulation implement the federal law andregulations which shall include but not be limited to the establishment ofincome and resource standards and limitations. The division shall require:
(1) That at the beginning of a period of continuousinstitutionalization that is expected to last for thirty days or more, theinstitutionalized spouse, or the community spouse, may request anassessment by the division of family services of total countable resourcesowned by either or both spouses;
(2) That the assessed resources of the institutionalized spouse andthe community spouse may be allocated so that each receives an equal share;
(3) That upon an initial eligibility determination, if the communityspouse's share does not equal at least twelve thousand dollars, theinstitutionalized spouse may transfer to the community spouse a resourceallowance to increase the community spouse's share to twelve thousanddollars;
(4) That in the determination of initial eligibility of theinstitutionalized spouse, no resources attributed to the community spouseshall be used in determining the eligibility of the institutionalizedspouse, except to the extent that the resources attributed to the communityspouse do exceed the community spouse's resource allowance as defined in 42U.S.C. Section 1396r-5;
(5) That beginning in January, 1990, the amount specified insubdivision (3) of this subsection shall be increased by the percentageincrease in the Consumer Price Index for All Urban Consumers betweenSeptember, 1988, and the September before the calendar year involved; and
(6) That beginning the month after initial eligibility for theinstitutionalized spouse is determined, the resources of the communityspouse shall not be considered available to the institutionalized spouseduring that continuous period of institutionalization.
7. Beginning July 1, 1989, institutionalized individuals shall beineligible for the periods required and for the reasons specified in 42U.S.C. Section 1396p.
8. The hearings required by 42 U.S.C. Section 1396r-5 shall beconducted pursuant to the provisions of section 208.080.
9. Beginning October 1, 1989, when determining eligibility forassistance pursuant to this chapter there shall be disregarded unlessotherwise provided by federal or state statutes, the home of the applicantor recipient when the home is providing shelter to the applicant orrecipient, or his or her spouse or dependent child. The division of familyservices shall establish by rule or regulation in conformance withapplicable federal statutes and regulations a definition of the home andwhen the home shall be considered a resource that shall be considered indetermining eligibility.
10. Reimbursement for services provided by an enrolled Medicaidprovider to a recipient who is duly entitled to Title XIX Medicaid andTitle XVIII Medicare Part B, Supplementary Medical Insurance (SMI) shallinclude payment in full of deductible and coinsurance amounts as determineddue pursuant to the applicable provisions of federal regulations pertainingto Title XVIII Medicare Part B, except the applicable Title XIX costsharing.
11. A "community spouse" is defined as being the noninstitutionalizedspouse.
12. An institutionalized spouse applying for Medicaid and having aspouse living in the community shall be required, to the maximum extentpermitted by law, to divert income to such community spouse to raise thecommunity spouse's income to the level of the minimum monthly needsallowance, as described in 42 U.S.C. Section 1396r-5. Such diversion ofincome shall occur before the community spouse is allowed to retain assetsin excess of the community spouse protected amount described in 42 U.S.C.Section 1396r-5*.
*Original rolls contain "1396-r", a typographical error.
CROSS REFERENCE:
Spousal impoverishment or premature placement in institutional care, protection against by compliance with section 208.010, RSMo, in determination of Medicaid eligibility, RSMo 660.690
(1960) On application of individual for old age assistance where it was admitted that the applicant had turned over to his daughters certain amounts of money, the burden was upon him to show that he was indebted to such daughters and his failure to show it by convincing evidence was sufficient to authorize the denial of his application for benefits. Carlisle v. State Department of Public Health and Welfare (A.), 341 S.W.2d 617
(1962) Director of welfare acted arbitrarily in determining eligibility of claimant and failed to grant fair hearing by refusing to consider evidence as to equitable ownership of property. Claimant was not required to establish by court action that beneficial ownership of property was in another. Powers v. State Department of Public Health and Welfare (A.), 359 S.W.2d 33.
(1962) Claimant's execution of a deed of trust against his property to secure a loan for $2,000 of which $1,000 went to his daughter-in-law and balance was used to pay off claimant's prior indebtedness secured by the property and the interest payments were paid by daughter-in-law, did not render claimant ineligible for benefits. Dysart v. State Dept. of Public Health & Welfare (A.), 361 S.W.2d 347.
(1962) Director's decision that claimants were ineligible for old age assistance in that they had sold real estate in which they had one-half interest without receiving anything of value therefor was not supported where uncontradicted evidence was that claimants had been made joint tenants with their daughter to prevent daughter's divorced husband acquiring an interest therein and there was no evidence that claimants had paid anything on purchase price. Velghe v. State Dept. of Public Health and Welfare (A.), 362 S.W.2d 747.
(1964) Finding of director that applicant for old age assistance had transferred $1500 to daughter without receiving fair and valuable consideration was based upon substantial evidence and decision denying compensation was not unreasonable or arbitrary. Dunnegan v. Gallop (A.), 374 S.W.2d 407.
(1972) Finding by director of public health and welfare that transfer of life estate of 68 year old claimant in business building which was in state of disrepair and disuse and encumbered by $1,500 in back taxes for payment of $50 for each month of her life with a minimum total payment of $1,000 was made without fair and valuable consideration was arbitrary and unreasonable. Davis v. State Dept. of Public Health and Welfare (A.), S.W.2d 775.
(1973) Held, verbal promise to pay for land conveyed by deed is within statutory definition of "fair and valuable consideration." Hill v. State Dept. of Public Health & Welfare (Mo.banc), 503 S.W.2d 6.
(1975) Evidence held not to sustain a finding that property was transferred without fair and valuable consideration. Value of undivided interest of a cotenant out of possession is not necessarily one-half of market value. Brumit v. State Department of Public Health and Welfare (Mo.), 521 S.W.2d 445.
(1985) In determining entitlement to medical assistance to pay for the cost of residential care, the director may not consider the value of the assets of a spendthrift trust where the settlor intended that the payments from the trust to his retarded son were to supplement rather than supplant benefits to which the son would otherwise be entitled. Tidrow v. Director of Mo. State Division of Family Services (Mo.App.), 688 S.W.2d 9.
Eligibility for public assistance, how determined--means test--certainmedical assistance benefits to include payment of deductible andcoinsurance--prevention of spousal impoverishments, division ofassets, community spouse defined--burial lots defined--diversion ofinstitutionalized spouse's income.
208.010. 1. In determining the eligibility of a claimant for publicassistance pursuant to this law, it shall be the duty of the division offamily services to consider and take into account all facts andcircumstances surrounding the claimant, including his or her livingconditions, earning capacity, income and resources, from whatever sourcereceived, and if from all the facts and circumstances the claimant is notfound to be in need, assistance shall be denied. In determining the needof a claimant, the costs of providing medical treatment which may befurnished pursuant to sections 208.151 to 208.158 and 208.162 shall bedisregarded. The amount of benefits, when added to all other income,resources, support, and maintenance shall provide such persons withreasonable subsistence compatible with decency and health in accordancewith the standards developed by the division of family services; provided,when a husband and wife are living together, the combined income andresources of both shall be considered in determining the eligibility ofeither or both. "Living together" for the purpose of this chapter isdefined as including a husband and wife separated for the purpose ofobtaining medical care or nursing home care, except that the income of ahusband or wife separated for such purpose shall be considered indetermining the eligibility of his or her spouse, only to the extent thatsuch income exceeds the amount necessary to meet the needs (as defined byrule or regulation of the division) of such husband or wife livingseparately. In determining the need of a claimant in federally aidedprograms there shall be disregarded such amounts per month of earned incomein making such determination as shall be required for federal participationby the provisions of the federal Social Security Act (42 U.S.C.A. 301 etseq.), or any amendments thereto. When federal law or regulations requirethe exemption of other income or resources, the division of family servicesmay provide by rule or regulation the amount of income or resources to bedisregarded.
2. Benefits shall not be payable to any claimant who:
(1) Has or whose spouse with whom he or she is living has, prior toJuly 1, 1989, given away or sold a resource within the time and in themanner specified in this subdivision. In determining the resources of anindividual, unless prohibited by federal statutes or regulations, thereshall be included (but subject to the exclusions pursuant to subdivisions(4) and (5) of this subsection, and subsection 5 of this section) anyresource or interest therein owned by such individual or spouse within thetwenty-four months preceding the initial investigation, or at any timeduring which benefits are being drawn, if such individual or spouse gaveaway or sold such resource or interest within such period of time at lessthan fair market value of such resource or interest for the purpose ofestablishing eligibility for benefits, including but not limited tobenefits based on December, 1973, eligibility requirements, as follows:
(a) Any transaction described in this subdivision shall be presumedto have been for the purpose of establishing eligibility for benefits orassistance pursuant to this chapter unless such individual furnishesconvincing evidence to establish that the transaction was exclusively forsome other purpose;
(b) The resource shall be considered in determining eligibility fromthe date of the transfer for the number of months the uncompensated valueof the disposed of resource is divisible by the average monthly grant paidor average Medicaid payment in the state at the time of the investigationto an individual or on his or her behalf under the program for whichbenefits are claimed, provided that:
a. When the uncompensated value is twelve thousand dollars or less,the resource shall not be used in determining eligibility for more thantwenty-four months; or
b. When the uncompensated value exceeds twelve thousand dollars, theresource shall not be used in determining eligibility for more than sixtymonths;
(2) The provisions of subdivision (1) of this subsection shall notapply to a transfer, other than a transfer to claimant's spouse, made priorto March 26, 1981, when the claimant furnishes convincing evidence that theuncompensated value of the disposed of resource or any part thereof is nolonger possessed or owned by the person to whom the resource wastransferred;
(3) Has received, or whose spouse with whom he or she is living hasreceived, benefits to which he or she was not entitled throughmisrepresentation or nondisclosure of material facts or failure to reportany change in status or correct information with respect to property orincome as required by section 208.210. A claimant ineligible pursuant tothis subsection shall be ineligible for such period of time from the dateof discovery as the division of family services may deem proper; or in thecase of overpayment of benefits, future benefits may be decreased,suspended or entirely withdrawn for such period of time as the division maydeem proper;
(4) Owns or possesses resources in the sum of one thousand dollars ormore; provided, however, that if such person is married and living withspouse, he or she, or they, individually or jointly, may own resources notto exceed two thousand dollars; and provided further, that in the case of atemporary assistance for needy families claimant, the provision of thissubsection shall not apply;
(5) Prior to October 1, 1989, owns or possesses property of any kindor character, excluding amounts placed in an irrevocable prearrangedfuneral or burial contract pursuant to subsection 2 of section 436.035,RSMo, and subdivision (5) of subsection 1 of section 436.053, RSMo, or hasan interest in property, of which he or she is the record or beneficialowner, the value of such property, as determined by the division of familyservices, less encumbrances of record, exceeds twenty-nine thousanddollars, or if married and actually living together with husband or wife,if the value of his or her property, or the value of his or her interest inproperty, together with that of such husband and wife, exceeds such amount;
(6) In the case of temporary assistance for needy families, if theparent, stepparent, and child or children in the home owns or possessesproperty of any kind or character, or has an interest in property for whichhe or she is a record or beneficial owner, the value of such property, asdetermined by the division of family services and as allowed by federal lawor regulation, less encumbrances of record, exceeds one thousand dollars,excluding the home occupied by the claimant, amounts placed in anirrevocable prearranged funeral or burial contract pursuant to subsection 2of section 436.035, RSMo, and subdivision (5) of subsection 1 of section436.053, RSMo, one automobile which shall not exceed a value set forth byfederal law or regulation and for a period not to exceed six months, suchother real property which the family is making a good-faith effort to sell,if the family agrees in writing with the division of family services tosell such property and from the net proceeds of the sale repay the amountof assistance received during such period. If the property has not beensold within six months, or if eligibility terminates for any other reason,the entire amount of assistance paid during such period shall be a debt duethe state;
(7) Is an inmate of a public institution, except as a patient in apublic medical institution.
3. In determining eligibility and the amount of benefits to begranted pursuant to federally aided programs, the income and resources of arelative or other person living in the home shall be taken into account tothe extent the income, resources, support and maintenance are allowed byfederal law or regulation to be considered.
4. In determining eligibility and the amount of benefits to begranted pursuant to federally aided programs, the value of burial lots orany amounts placed in an irrevocable prearranged funeral or burial contractpursuant to subsection 2 of section 436.035, RSMo, and subdivision (5) ofsubsection 1 of section 436.053, RSMo, shall not be taken into account orconsidered an asset of the burial lot owner or the beneficiary of anirrevocable prearranged funeral or funeral contract. For purposes of thissection, "burial lots" means any burial space as defined in section214.270, RSMo, and any memorial, monument, marker, tombstone or lettermarking a burial space. If the beneficiary, as defined in chapter 436,RSMo, of an irrevocable prearranged funeral or burial contract receives anypublic assistance benefits pursuant to this chapter and if the purchaser ofsuch contract or his or her successors in interest cancel or amend thecontract so that any person will be entitled to a refund, such refund shallbe paid to the state of Missouri up to the amount of public assistancebenefits provided pursuant to this chapter with any remainder to be paid tothose persons designated in chapter 436, RSMo.
5. In determining the total property owned pursuant to subdivision(5) of subsection 2 of this section, or resources, of any person claimingor for whom public assistance is claimed, there shall be disregarded anylife insurance policy, or prearranged funeral or burial contract, or anytwo or more policies or contracts, or any combination of policies andcontracts, which provides for the payment of one thousand five hundreddollars or less upon the death of any of the following:
(1) A claimant or person for whom benefits are claimed; or
(2) The spouse of a claimant or person for whom benefits are claimedwith whom he or she is living.
If the value of such policies exceeds one thousand five hundred dollars,then the total value of such policies may be considered in determiningresources; except that, in the case of temporary assistance for needyfamilies, there shall be disregarded any prearranged funeral or burialcontract, or any two or more contracts, which provides for the payment ofone thousand five hundred dollars or less per family member.
6. Beginning September 30, 1989, when determining the eligibility ofinstitutionalized spouses, as defined in 42 U.S.C. Section 1396r-5, formedical assistance benefits as provided for in section 208.151 and 42U.S.C. Sections 1396a et seq., the division of family services shall complywith the provisions of the federal statutes and regulations. As necessary,the division shall by rule or regulation implement the federal law andregulations which shall include but not be limited to the establishment ofincome and resource standards and limitations. The division shall require:
(1) That at the beginning of a period of continuousinstitutionalization that is expected to last for thirty days or more, theinstitutionalized spouse, or the community spouse, may request anassessment by the division of family services of total countable resourcesowned by either or both spouses;
(2) That the assessed resources of the institutionalized spouse andthe community spouse may be allocated so that each receives an equal share;
(3) That upon an initial eligibility determination, if the communityspouse's share does not equal at least twelve thousand dollars, theinstitutionalized spouse may transfer to the community spouse a resourceallowance to increase the community spouse's share to twelve thousanddollars;
(4) That in the determination of initial eligibility of theinstitutionalized spouse, no resources attributed to the community spouseshall be used in determining the eligibility of the institutionalizedspouse, except to the extent that the resources attributed to the communityspouse do exceed the community spouse's resource allowance as defined in 42U.S.C. Section 1396r-5;
(5) That beginning in January, 1990, the amount specified insubdivision (3) of this subsection shall be increased by the percentageincrease in the Consumer Price Index for All Urban Consumers betweenSeptember, 1988, and the September before the calendar year involved; and
(6) That beginning the month after initial eligibility for theinstitutionalized spouse is determined, the resources of the communityspouse shall not be considered available to the institutionalized spouseduring that continuous period of institutionalization.
7. Beginning July 1, 1989, institutionalized individuals shall beineligible for the periods required and for the reasons specified in 42U.S.C. Section 1396p.
8. The hearings required by 42 U.S.C. Section 1396r-5 shall beconducted pursuant to the provisions of section 208.080.
9. Beginning October 1, 1989, when determining eligibility forassistance pursuant to this chapter there shall be disregarded unlessotherwise provided by federal or state statutes, the home of the applicantor recipient when the home is providing shelter to the applicant orrecipient, or his or her spouse or dependent child. The division of familyservices shall establish by rule or regulation in conformance withapplicable federal statutes and regulations a definition of the home andwhen the home shall be considered a resource that shall be considered indetermining eligibility.
10. Reimbursement for services provided by an enrolled Medicaidprovider to a recipient who is duly entitled to Title XIX Medicaid andTitle XVIII Medicare Part B, Supplementary Medical Insurance (SMI) shallinclude payment in full of deductible and coinsurance amounts as determineddue pursuant to the applicable provisions of federal regulations pertainingto Title XVIII Medicare Part B, except the applicable Title XIX costsharing.
11. A "community spouse" is defined as being the noninstitutionalizedspouse.
12. An institutionalized spouse applying for Medicaid and having aspouse living in the community shall be required, to the maximum extentpermitted by law, to divert income to such community spouse to raise thecommunity spouse's income to the level of the minimum monthly needsallowance, as described in 42 U.S.C. Section 1396r-5. Such diversion ofincome shall occur before the community spouse is allowed to retain assetsin excess of the community spouse protected amount described in 42 U.S.C.Section 1396r-5*.
*Original rolls contain "1396-r", a typographical error.
CROSS REFERENCE:
Spousal impoverishment or premature placement in institutional care, protection against by compliance with section 208.010, RSMo, in determination of Medicaid eligibility, RSMo 660.690
(1960) On application of individual for old age assistance where it was admitted that the applicant had turned over to his daughters certain amounts of money, the burden was upon him to show that he was indebted to such daughters and his failure to show it by convincing evidence was sufficient to authorize the denial of his application for benefits. Carlisle v. State Department of Public Health and Welfare (A.), 341 S.W.2d 617
(1962) Director of welfare acted arbitrarily in determining eligibility of claimant and failed to grant fair hearing by refusing to consider evidence as to equitable ownership of property. Claimant was not required to establish by court action that beneficial ownership of property was in another. Powers v. State Department of Public Health and Welfare (A.), 359 S.W.2d 33.
(1962) Claimant's execution of a deed of trust against his property to secure a loan for $2,000 of which $1,000 went to his daughter-in-law and balance was used to pay off claimant's prior indebtedness secured by the property and the interest payments were paid by daughter-in-law, did not render claimant ineligible for benefits. Dysart v. State Dept. of Public Health & Welfare (A.), 361 S.W.2d 347.
(1962) Director's decision that claimants were ineligible for old age assistance in that they had sold real estate in which they had one-half interest without receiving anything of value therefor was not supported where uncontradicted evidence was that claimants had been made joint tenants with their daughter to prevent daughter's divorced husband acquiring an interest therein and there was no evidence that claimants had paid anything on purchase price. Velghe v. State Dept. of Public Health and Welfare (A.), 362 S.W.2d 747.
(1964) Finding of director that applicant for old age assistance had transferred $1500 to daughter without receiving fair and valuable consideration was based upon substantial evidence and decision denying compensation was not unreasonable or arbitrary. Dunnegan v. Gallop (A.), 374 S.W.2d 407.
(1972) Finding by director of public health and welfare that transfer of life estate of 68 year old claimant in business building which was in state of disrepair and disuse and encumbered by $1,500 in back taxes for payment of $50 for each month of her life with a minimum total payment of $1,000 was made without fair and valuable consideration was arbitrary and unreasonable. Davis v. State Dept. of Public Health and Welfare (A.), S.W.2d 775.
(1973) Held, verbal promise to pay for land conveyed by deed is within statutory definition of "fair and valuable consideration." Hill v. State Dept. of Public Health & Welfare (Mo.banc), 503 S.W.2d 6.
(1975) Evidence held not to sustain a finding that property was transferred without fair and valuable consideration. Value of undivided interest of a cotenant out of possession is not necessarily one-half of market value. Brumit v. State Department of Public Health and Welfare (Mo.), 521 S.W.2d 445.
(1985) In determining entitlement to medical assistance to pay for the cost of residential care, the director may not consider the value of the assets of a spendthrift trust where the settlor intended that the payments from the trust to his retarded son were to supplement rather than supplant benefits to which the son would otherwise be entitled. Tidrow v. Director of Mo. State Division of Family Services (Mo.App.), 688 S.W.2d 9.
