8240 Treatment of Resources and Income - The general guidelines of 5200 and 6100 are applicable to persons in HCBS arrangements. The following additional rules must also be considered.
8241 Initial Resource Test - When a husband or wife is determined to qualify for HCBS services (i.e., is assessed as in need of care, chooses HCBS, and services are available), the total value of the resources owned by the couple which exceed the community spouse resource allowance as determined in accordance with 8244.1 below shall be considered available to the spouse qualifying for HCBS in determining eligibility regardless of which spouse owns resources and regardless of whether the spouses intend to divide resources under the spousal impoverishment provisions.
NOTE: For persons put on a waiting list for HCBS services, this provision shall generally be based on the date the person is assessed with the exception of the FE waiver where it is either the date of assessment or the date the person is placed on the waiting list for services.
This provision is also applicable regardless of any previously established prenuptial or postnuptial agreement. The combined resources of the couple must be considered despite such agreement.
If the value exceeding the community spouse resource allowance is less than or equal to the allowable 1 person resource level described in 5130, the person is eligible. In the month following the first month of eligibility, only those resources owned by the spouse in HCBS shall be considered for determining continuing eligibility on his or her case. This may result in ineligibility for the following months unless the couple intend to transfer assets under the spousal impoverishment provisions.
If the value exceeding the community spouse resource allowance is more than the allowable 1 person resource level, the person shall not be eligible until such time that the excess falls below the 1 person resource standard. At that point, the person becomes eligible for the month the excess is reduced. For the following months, only the resources owned by the spouse in HCBS shall be considered on his or her case. This may result in ineligibility for those months as indicated above.
The institutionalized spouse shall not be rendered ineligible because of the initial resource test if the agency initiates legal action in court against the community spouse for failure to make those resources in excess of the resources allowable available to the institutionalized spouse. The institutionalized spouse shall also not be rendered ineligible because of this initial resource test if denial of eligibility would result in an undue hardship. This could include instances in which the community spouse is refusing to make resources he or she owns available to the institutionalized spouse and the above-mentioned support proceeding has not been initiated or where the couple has a substantial outstanding debt which must be met through those resources currently available to them. If undue hardship is claimed, it must be referred to the Regional EES Program Administrator for decision in consultation with the EES Policy Section.