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Ray
Ray, Lawyer
Category: Legal
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Experience:  30 years in civil, probate, real estate, elder law
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My wife in a nursing home what are my rights her age is 49

Customer Question

My wife in a nursing home what are my rights her age is 49
Submitted: 10 months ago via Cornell Legal Info Institute.
Category: Legal
Expert:  Ray replied 10 months ago.
Hi and welcome to JA.Ray here to help you tonight. Is she on medicaid here ??Are you wanting to know if medicaid will keep the social security?
Expert:  Ray replied 10 months ago.
Here are the rules §358.415. Calculation of the Spousal Protected Resource Amount.(A)the community spouse or dependent family member continues to live in the home while the person is in the institutional setting;(B)the community spouse lives in another state on out-of-state property, whether or not the institutionalized spouse has ownership interest; or(C)the community spouse had been living in the out-of-state property as a home but is not residing there during the assessment and initial eligibility period and the community spouse signs a statement of intent to return to the home.(1)one automobile; and(2)a home, if:(1)one-half of the couple's combined countable resources, not to exceed the maximum resource amount set by federal law; or(2)the minimum resource amount set by federal law.(1)the SPRA was based on incomplete or inaccurate information, as described in §358.416(f)(1) of this division (relating to Initial Application and the Spousal Protected Resource Amount); or(2)the SPRA is expanded as described in §358.420 of this division (relating to Expanding the Spousal Protected Resource Amount).(a)The Texas Health and Human Services Commission (HHSC) calculates the spousal protected resource amount (SPRA) as of the assessment date described in §358.414(c) of this division (relating to Assessment of Resources to Determine a Spousal Protected Resource Amount).(b)When determining the SPRA, HHSC excludes the following resources regardless of value:(c)The SPRA is the greater of:(d)HHSC calculates the SPRA as described in this section whether the SPRA is calculated at the time of application for Medicaid or before an application for Medicaid is filed. After HHSC determines the SPRA, the SPRA does not change unless:(e)The couple may not appeal the SPRA at the time of the assessment. The couple may appeal the SPRA after an application for Medicaid is filed.§358.416. Initial Application and the Spousal Protected Resource Amount.(1)if the institutionalized spouse should never have been certified and was denied because of unreported resources, HHSC calculates a new SPRA at reapplication, taking into account the previously unreported resources; and(2)if the institutionalized spouse was denied for any other reason, HHSC does not deduct the SPRA and counts only the institutionalized spouse's resources at reapplication.(a)Upon receiving an application for Medicaid, the Texas Health and Human Services Commission (HHSC) calculates the couple's combined countable resources, without regard to community or separate property laws or the spouses' respective ownership interests, as of 12:01 a.m. on the first day of the month in which eligibility is being determined. HHSC follows the resource exclusions for an automobile and a home, regardless of value, as described in §358.415 of this division (relating to Calculation of the Spousal Protected Resource Amount).(b)If an assessment of resources to determine the spousal protected resource amount (SPRA) has not previously been completed, HHSC determines the SPRA at initial application, in accordance with §358.415 of this division.(c)HHSC deducts the SPRA from the couple's combined countable resources calculated in subsection (a) of this section. HHSC follows §1924(a)(3) and §1924(c)(2) of the Social Security Act (42 U.S.C. §1396r-5(a)(3) and 42 U.S.C. §1396r-5(c)(2)) when determining resource eligibility of the institutionalized spouse at the initial eligibility determination.(d)If the SPRA determined at assessment is either the federal minimum or maximum resource amount, and the federal minimum or maximum resource amount increases before completion of the initial application for Medicaid, HHSC uses the federal minimum and maximum resource amounts in effect at the time of completion of the initial application.(e)If the institutionalized spouse is found ineligible for Medicaid at the initial application and reapplies, HHSC deducts the same SPRA for subsequent applications.(f)If an institutionalized spouse, after having been certified, is subsequently denied and reapplies for Medicaid:(g)After eligibility is established for the institutionalized spouse, HHSC follows §1924(c)(4) of the Social Security Act (42 U.S.C. §1396r-5(c)(4)) in the separate treatment of resources.
Expert:  Ray replied 10 months ago.
Reference If people are married, and only one spouse needs nursing home care, the spouse who stays at home is called the "community spouse". When this happens, the spouse entering the nursing home can have up to $2,000 in countable assets. And, the "community spouse" gets some resources that are protected. To figure out how much in assets the community spouse can keep, figure out the value of one-half of the couple's property not counting their homestead, household goods, personal goods, one car, and burial funds. The community spouse may keep one-half of all the other property of the couple, but not less than $23,184 nor more than $115,920. The community spouse can also have $2,898 a month to live on. This is called the spousal allowance or monthly minimum needs allowance. If the community spouse’s income is more than $2,898 a month, there is no need for the spousal allowance. If there is a dependent, the dependent allowance is $1,892 per month. This means the dependent of the person in the nursing home can have $1,892 per month to live on. If the dependent’s income is more than $1,892 a month, there is no need for dependent allowance. The protected resources amount can be increased when the income of the community spouse is lower than the minimum monthly maintenance needs allowance. When this happens, the spouse in the nursing home can give income to the spouse in the community. But to do this you have to have a fair hearing. A fair hearing takes place after the applicant has applied for nursing home Medicaid and has been denied. The applicant must request a fair hearing asking that the protected resource amount be increased for the community spouse. An applicant should contact a Benefits Counselor with the local Area Agency on Aging or a lawyer to help with a fair hearing. The request for a fair hearing must be made within 90 days after the Health and Human Services Commission denies a person’s application for Medicaid. What is “applied income”? After aperson is eligible for nursing home Medicaid, “applied income” is calculated byan HHSC worker. “Applied income” is thepart of a person’s income that has to be paid to the nursing home. “Applied income” is calculated for anunmarried individual as follows: find the net earned and gross unearned income,deduct a “personal needs” allowance of $60, and deduct medical expenses such asMedicare premiums and health insurance. Whatis left is the “applied income” that is paid to the nursing home. Incurredmedical expenses are expenses the nursing home resident has to pay for Medicareand other health insurance premiums, deductibles and coinsurance, and medicalcare and services recognized by state law but not covered by Medicaid. Th efollowing is an example of applied income calculations. The nursing home resident has income of $1,600 and has incurred medical expenses of $200 permonth. Community Spouse (CS) has income of $1,800 per month. $1600 (nursing home resident’s income) - $ 60(personal needs allowance)+ $1,800 (community spouse’s income) $3,340 Total income Subtract $2,898 for spousal monthly maintenance needs allowance. $3,340 -$2,898 $ 442 Then, subtract $200 forincurred medical expenses. $442 -$200 $242 The nursing home is paid $242.The remainder of the applicant’s income, goes to the community spouse.
Expert:  Ray replied 10 months ago.
In Texas the "community spouse" is entitled to keep a "protected resource amount." The starting point is to subtract from all the couple's property (both community and separate) certain exempt property including the residence, household goods, personal goods, one car, and certain funeral and burial arrangements. The non-exempt property is valued as of the first day of the first month one spouse is in a nursing home. The "protected resource amount" is one-half of the total value of the non-exempt property, provided it cannot be less than $16,152 nor more than $80,760.
Expert:  Ray replied 10 months ago.
Here is more information for 2016 Spousal Rules:Amount of assets community spouse may retain: The community spouse can keep one-half of countable assets with a maximum value of $119,220. If the community spouse’s assets do not equal the minimum of $23,844, the community spouse is able to retain assets from the institutionalized spouse until the minimum is reached.Community spouse impoverishment protection: The community spouse can keep part of the institutionalized spouse’s income if the community spouse has an income of less than $2,980.50 per month. The maximum amount of income that can be retained is $2,980.50. Texas is an “income first” state, meaning the state limits the right to petition for an increased community spouse resource amount (CSRA) to couples whose combined income fails to meet the community spouse’s income needs. Basically, this means a community spouse can petition for an increased CSRA where there’s an income gap only after factoring in the nursing home spouse’s income first.
Expert:  Ray replied 10 months ago.
The bot***** *****ne is that they will keep most of her social security as her share of the cost of care called applied income.They will calculate what part you get as community spouse.You will get a little bit but they get the bulk of it here. Thanks again. If you can leave a positive rating when we are done it is always much appreciated.