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Spousal Impoverishment Extended to Same Sex Spouses & RDPs

The Department of Health Care Services (DHCS) recently released ACWDL 12-36, which instructs counties to retroactively implement AB 641 (Feuer) effective January 1, 2012. AB 641, which added Welfare & Institutions Code §14015.12, extends spousal impoverishment protections now available to married, opposite-sex couples, to same-sex spouses and registered domestic partners through the transfer of property undue hardship provisions. This change permits same-sex spouses and registered domestic partners to retain largely the same amount of income and property that opposite-sex spouses are permitted to retain when one of the spouses is an institutionalized spouse and the other spouse is a community spouse pursuant to All County Welfare Directors Letters (ACWDLs) 90-01 and 90-03.

The ACWDL instructs counties that, when transfers of property between same sex spouses or registered domestic partners are considered, a finding of undue hardship shall be found to exist if the institutionalized applicant/beneficiary verifies or attests that he/she has a same sex spouse or RDP via the statement of facts, a signed statement by the applicant, or – at the option of either spouse – a copy of the marriage license or RDP certificate. The applicant/beneficiary must also provide verification of the net market value of all non-exempt property transferred to the same sex community spouse, other than the principal residence. To the extent that the net market value of that property does not exceed the CSRA that would be available to that person if he/she were an opposite-sex spouse, the same sex spouse or RDP would be able to retain that amount – $115,920 for 2013.

When proof of a same sex spouse or RDP is satisfied, the county shall reduce the share of cost as necessary to allow for the transfer of the spousal income allowance, if the amount of the transferred income does not cause the income of the same-sex spouse or registered domestic partner’s income to exceed the MMMNA - $2,898 in 2013.

The ACWDL also instructs counties that the CSRA and the Spousal Income Allocation amounts may be increased using the same procedures as provided for opposite-sex spouses via fair hearing or court order. This is a particularly noteworthy provision in the ACWDL.

Counties are required to apply the new provisions retroactively to all same-sex spouses and registered domestic partners currently receiving nursing facility level of care and to those who received nursing facility level of care on or after January 1, 2012. To that end, counties are instructed to implement the changes at application, redetermination, and whenever a case is brought to their attention; review and correct cases as identified; retroactively reinstate any denied or discontinued cases; and assist affected couples in obtaining reimbursement for Medi-Cal covered services. So, if you have or have had clients who would be impacted by these changes, you should contact them about the new law.

These provisions are a long time coming, and we extend our gratitude to Assembly member Feuer and the folks at the Medi-Cal Eligibility Division for helping to extend fairness and equity to same sex spouses and registered domestic partners. Now let’s hope the Supremes will follow suit. (For a copy of the ACWDL 12-36, see the CANHR Medi-Cal for Long Term Care link to the All County Letters.)