Attorney General's Opinion
Attorney General, Richard Blumenthal
June 16, 1992
Honorable Audrey Rowe
Department of Income Maintenance
110 Bartholomew Avenue
Hartford, Connecticut 06106
Dear Commissioner Rowe:
By letter of February 4, 1992. you requested an opinion of the Attorney General on the State's ability to pursue statutory support obligations against the community (non-institutionalized) spouse of an institutionalized Medicaid patient, in view of certain provisions contained in the Medicare Catastrophic Coverage Act of 1988 (MCCA), Pub.L. 100-360. Our response to you necessarily involves an analysis of the interplay between Medicaid eligibility rules and state law enabling the recovery of payments made to eligible persons. from legally liable relatives. At issue are MCAA's requirements that (a) [d]uring any month in which an institutionalized spouse is in the institution, ... no income of the community spouse shall be deemed available to the institutionalized spouse" (42 U.S.C. § 1396i-r-5(b)(1))1; and (b) a "community spouse monthly income allowance" shall be deducted from the institutionalized spouse's monthly income (post-eligibility), to the extent it is "made available to (or for the benefit of) the community, spouse." (42 U.S.C. § 1396r-5(d)(1)(B)). You ask whether the State's pursuit of recovery from community spouses as liable relatives under Conn. Gen. Stat. § 17-82e violates these federal protections.
Specifically, you inquire:
- "Should Connecticut be pursuing the use of a contribution scale in respect to a community spouse who is receiving a CSA [community spouse monthly income allowance) from his or her institutionalized spouse?"
- "Inasmuch as a CSA is allowed only when paid by the institutionalized spouse, should we be pursuing a community spouse who does not receive a CSA?'
- "If we do pursue a community spouse who does not receive a CSA, doesn't it conflict with the provisions of section 1924(b)(1) [42 U.S.C. § 1396r-5(b)(l)]?"
For the reasons set out below, your first and third questions are answered in the negative, and the second is answered in the affirmative.
Background
The State's authority to administer the Medicaid program in Connecticut derives from Conn. Gen. Stat. § 17-134a, which provides that:
The commissioner of income maintenance is authorized to take advantage of the medical assistance program provided in Title XIX, entitled "Grants to States for Medical Assistance Programs", contained in the Social Security Amendments of 1965 and may administer the same in accordance with the requirements therein, including the waiving, with respect to the amount paid for medical care, of provisions concerning recovery from beneficiaries or their estates, charges and recoveries against legally liable relatives, and liens against property of beneficiaries. (Emphasis added.)
Conn. Gen. Stat. § 17-134e provides: "All of the provisions of this chapter are extended to the medical assistance program except such provisions as are inconsistent with federal law and regulations governing Title XIX of the Social Security Amendments of 1965 and this part".
The Medicaid program provides federal funds to States that pay for medical treatment for needy persons. "States choosing to participate in the program are required to follow federal guidelines," Morris v. Morrow , 783 F.2d 454, 456 (4th Cir. 1986), and "must comply with requirements imposed both by the Act itself and the Secretary of Health and Human Services." Schweiker v. Gray Panthers, 453 U.S. 34, 37, 101 S.Ct. 2633, 2637, (1981).
The Medicare Catastrophic Coverage Act of 1988 significantly changed the requirements of federal law regarding the treatment of income when one spouse is institutionalized and applies for or is receiving Medicaid assistance. Prior to MCCA, federal regulations allowed so-called "§ 209(b) states" like Connecticut2 to consider (or "deem") income of the community spouse as available to the institutionalized spouse, for purposes of determining eligibility for Medicaid assistance, to the full extent that such states did before the 1972 Social Security Act amendments. As you have pointed out, MCCA (42 U.S.C. § 1396r-5(b)(1)) now prohibits the deeming of income availability "[d]uring any month in which an institutionalized spouse is in the institution." MCCA also requires each state to establish a "minimum monthly maintenance needs allowance" for each community spouse in order to assure an inflation-adjusted income level at an "applicable percent" (150% in 1992) of poverty level,3 and permits a "community spouse monthly income allowance' to be deducted from the institutionalized spouse's monthly income, so that the minimum monthly maintenance needs allowance figure is met.
Federal law has consistently required states to base assessments of financial need for Medicaid assistance on only "such income and resources as are, as determined by the Secretary, available to the applicant or recipient." 42 U.S.C. § 1396a(a)(17)(B) (emphasis added). "Specifically, eligibility decisions [may] 'not take into account the financial responsibility of any individual for any applicant or recipient of assistance ... unless such applicant or recipient is such individual's spouse or minor, blind, or disabled child. Section 1396a(a)(17)(D)." Schweiker v. Gray Panthers, 101 S.Ct. 2633, 2637 (1981).
The Medicaid Act has consistently required states to pursue reimbursement of Medicaid assistance from legally liable third parties. See 42 U.S.C. § 1396a(a)(25). To this end, the State of Connecticut makes use of its relative responsibility law, Conn. Gen. Stat. § 17-82e(a), which states that the Commissioner of Income Maintenance shall:
"investigate the financial condition of each legally liable relative, as defined in section 4a-12, and ... make a determination as to the financial ability of each such relative in accordance with the uniform contribution scale established by the commissioner of administrative services... [and] notify in writing each such relative of the amount each is found able to contribute toward such support, and each such relative shall be liable in said amount from the date of such notice, retroactive to the date of granting of assistance
Conn. Gen. Stat. § 4a-12(c) defines "liable relative" as including "the husband or wife of any person receiving public assistance or aided, cared for or treated at a state humane institution...." The provision requires the commissioner of administrative services to adopt regulations establishing:
"(1) A uniform contribution scale for liable relatives based upon ability to pay and the administrative feasibility of collecting such contributions, provided no such liable relative shall contribute in excess of twenty-five percent of the remainder, if any, after two hundred percent of federal poverty income guidelines, adjusted for family size, has been deducted from such liable relative's taxable income for federal income tax purposes; (2) the manner in which the department of administrative services shall determine and periodically reinvestigate the ability of such liable relatives to pay; and (3) the manner in which the department shall waive such contributions upon determination that such contribution would pose a significant hardship upon such liable relatives.
Finally, Conn. Gen. Stat. § 4a-12(d) provides: "Notwithstanding the provisions of subsection (c) of this section, no liability shall be imposed upon a liable relative upon determination by the department of income maintenance that the benefit of the assistance or service provided would be significantly impaired by the imposition of . . . "4
Analysis
(Question 1)
May the State of Connecticut pursue support contributions under f 17-82e from a community spouse receiving a CSA from his or her institutionalized spouse?
MCCA's introduction of the community spouse monthly income allowance (42 U.S.C. § 1396r-5(d)(1)), designed to assure a community spouse's retention of a minimal amount of income to satisfy his or her daily needs, is reasonably read to preclude states' recovery actions against CSA recipients. Only those non-institutionalized spouses whose "otherwise available" income does not meet the minimum monthly maintenance needs allowance5 figure can qualify to receive a CSA, which itself is restricted to an amount sufficient to meet the needs allowance level.
The intent behind 42 U.S.C. § 1396r-5(d) ("Protecting income for community spouse") is unmistakably plain. At least the established minimum amount shall remain with the community spouse, even if some or all of it must come from income of the institutionalized spouse. Given the State's established duty to administer all aspects of the Medicaid program pursuant to federal requirements6, the purpose behind MCCA's creation of the CSA, and Connecticut's discretionary authority to pursue recovery from liable relatives on the basis of their determined ability to pay, under § 4a-12(c), we conclude that CSA recipients should be treated as exempt from claims under § 17-82e for contribution toward the cost of their spouses' institutionalization.
This analysis comforts with advice contained in a footnote to an Opinion of the Attorney General dated September 6, 1990, and issued to your department, in which it was noted that the uniform contribution scale adopted by the Department of Administrative Services (DAS) under Conn. Gen. Stat. § 4-68a (Regs. of Conn. State Agencies § 4-68a-2) allows legally liable relatives to retain less than the minimum monthly maintenance needs allowance required by MCCA for community spouses. By that Opinion, this Office advised that, since DIM is required to utilize DAS' contribution scale, Regs. § 4-68a-2 "should be amended, at least insofar as it applies to spouses of institutionalized Medicaid recipients, in order to allow the community spouse to retain an amount of monthly income that is at least equal to the monthly needs allowance in accordance with... MCCA." 90 Conn. Op. Atty. Gen. (9/6/90). To date, the regulation has not been so amended.
"While [s]tate participation in the Medicaid program is... entirely optional, ... a state must comply with the requirements of Title XIX once it elects to participate." Mahre v. FOIC, 192 Conn. 310, 317-18 (1984), citing Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671 (1980). In order to reconcile Connecticut's relative responsibility statutes with the provisions of MCCA, the department is, advised to determine, under Conn. Gen. Stat. § 4a-12(d), "that the benefit of the [Medicaid] assistance or service provided [to institutionalized spouses] would be significantly impaired by the imposition of... liability" for the cost of their support upon community spouses who receive the community spouse monthly needs allowance (CSA) under 42 U.S.C. § 1396r-5(b)(1). By this determination under state authority, CSA-supported community spouses will be considered exempt from such liability, ensuring Connecticut's compliance with the federal law.
(Questions 2 and 3)
May the State of Connecticut pursue support contributions under § 17-82e from a community spouse who does not receive a CSA from his or her institutionalized spouse, despite MCCA's prohibition against deeming income availability from the community spouse to the institutionalized spouse?
Your letter notes that a CSA mat be deducted only "when it is paid by the institutionalized spouse".7 Further, a CSA deduction is allowed only to the extent that the state-established minimum monthly maintenance needs allowance for the community spouse is not otherwise met. 42 U.S.C. § 1396r-5(d)(2). Community spouses who do not receive CSA's would therefore include those whose income renders them ineligible for the benefit, as well as those whose institutionalized partners simply fail or refuse to take the deduction. In either case, the MCCA provisions concerning treatment of income impose no prohibition against the individual states' use of relative liability laws in an attempt to recover the costs of institutionalization from these community spouses.
Federal law requires that each State Plan must "provide (A) that the State ...will take all reasonable measures to ascertain the legal liability of third parties...to pay for care and services available under the plan...[and] (B) that in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement a State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability...." 42 U.S.C. § 1396a(a)(25).
In the years preceding MCCA, numerous legal challenges were brought against the federal regulations' liberal allowance for so-called "§ 209(b) states" to deem the income of a community spouse as "available" to his or her institutionalized spouse, for purposes of Medicaid eligibility. Schweiker v. Gray Panthers, 453 U.S. 34, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981), finally resolved the resulting disagreement among the Circuit Courts of Appeal over "deeming", by declaring the regulations a proper, consistent and reasonable exercise of the Secretary of Health and Human Services' broad authority under the Medicaid Act.
The Gray Panthers case traces the origin of the "deeming" issue to 42 U.S.C. § 1396a(a)(17)(D), which from the outset has excluded the Medicaid applicant or recipient's spouse from the general prohibition against considering third parties' financial responsibility for such applicants or recipients, in determining their eligibility. "Believing it reasonable to expect an applicant's spouse to help pay medical expenses, some States adopted plans that considered the spouse's income in determining Medicaid eligibility and benefits [sic]. These states calculated an amount considered necessary to pay the basic living expenses of the spouse and 'deemed' any of the spouse's remaining income to be 'available' to the applicant, even where the applicant was institutionalized and thus no longer living with the spouse." Schweiker v. Gray Panthers, 453 U.S. at 37-38 (1981), 101 S.Ct. 2633, 2637. Further defining the issue, the Court explained that following the expansion of general welfare in 1972, accomplished by Supplemental Security Income for the Aged, Blind and Disabled (SSI), 42 U.S.C. § 1381, Congress offered states the "§ 209(b) option" in order to relieve the substantial fiscal burden of increased categorical welfare assistance brought on by SSI. As stated above, § 209(b) states were permitted to grant Medicaid assistance based on their eligibility standards in place as of January 1, 1972. "And, if they [chose], § 209(b) States [could] "deem" to the full extent that they did before 1972." Schweiker v. Gray Panthers, 453 U.S. at 40, 101 S.Ct. at 2638.
In this pre-MCCA case, the Supreme Court considered, and dismissed, the suggestion that Congress included 42 U.S.C. §1396a(a)(17)(D) "simply to permit States to enforce their 'relative responsibility laws' against a noncontributing spouse". The Court found this argument unpersuasive, stating "It is not 'an answer to say that the state can take action against the spouse to recover that which the spouse was legally obligated to pay'". Schweiker v. Gray Panthers, 453 U.S. at 46, 101 S.Ct. at 2641, citing Brown v. Stanton, 617 F.2d 1224, 1234 (CA 7 1980) (Pell, J., dissenting in part and concurring in part; later vacated and remanded in light of Gray Panthers, 101 S.Ct. 3151, 453 U.S. 917 (1981)). Even courts which prior to Gray Panthers had determined that income presumption between spouses when one is institutionalized violated the Medicaid Act, viewed the "deeming" issue as entirely distinct from cost recovery under relative responsibility laws. See Manfredi v. Maher, 435 F.Supp. 1106, 1115 (D. Conn. 1977): "Once a couple otherwise eligible for medical benefits becomes actually separated on a non-temporary basis, because of...institutionalization...such a couple's income and resources shall be considered separately in assessing Medicaid eligibility". The Manfredi court noted that "[n]othing in the SSA precludes a state from exercising its financial responsibility laws" against a spouse who is able to contribute support. Id., n.18. See also Hanke v. Nyhus, 470 F.Supp. 742, 746 (D. Minn. 1979), which held the deeming of income availability between community and institutionalized spouses invalid, but stated: "This conclusion in no way affects the right of the state to pursue any claim it may have for contribution from the non-institutionalized spouse pursuant to relative responsibility laws". Two years after the Gray Panthers decision, the U.S. Supreme Court acknowledged the existence of "some tension" between federal regulations concerning what income is "available" to an applicant and the states' own "spousal responsibility policies" (pursuant to which eligibility for Medicaid may depend on deeming the availability of income between spouses). The Court noted, however, that states are "free" to obtain reimbursement from the non-institutionalized spouse [pursuant to their] family responsibility laws". Herwig v. Ray, 455 U.S. 274, 276-277, 102 S.Ct. 1059, 1067 (1982) (n.14). Regulations defining "available" as used in 42 U.S.C. § 1396a(a)(17)(B), and thereby affecting the ability of states to consider inter-spousal income figures in making eligibility decisions, had no impact on state's actions for recovery from liable relatives. Id.
Given this historical perspective, MCCA's prohibition against the deeming of income availability to an institutionalized spouse does not affect a state's authority to pursue recovery from community spouses not receiving a CSA. However, liability under Connecticut's support statutes is expressly conditioned upon a determination of the individual's "financial ability' to contribute, "in accordance with the uniform contribution scale established by the commissioner of administrative services". Conn. Gen. Stat. § 17-82e(a). As stated previously, all community spouses of institutionalized individuals are entitled to retain at least the minimum monthly maintenance needs allowance required by federal law to be established in each state.8
The contribution scale adopted by DAS should be amended to meet this federal standard.
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
Susan Brooks Flanders
Assistant Attorney General
RB/SBF/ko
1 Provisions of the Medicare Catastrophic Coverage Act are commonly referenced in three different ways: section numbers in Public Law 100-360; section numbers in the Social Security Act. and section numbers in the United States Code. This opinion will consistently. refer to relevant parts of MCCA by their U.S. Code section numbers.
2 In 1972, Congress introduced Supplemental Security Income for the Aged, Blind and Disabled (SSI), 42 U.S.C.. § 1381, thus greatly expanding categorical Medicaid assistance. In order to relieve the overwhelming fiscal burden which this expansion would place on certain states, section 209(b) of the 1972 amendments, (see 42 U.S.C.. § 1396a(f)), provides, (as amended) in pertinent part:
Notwithstanding any other provision of this subchapter, except as provided in subsection (e) of this section and section 1382h(b)(3) of this title and section 1396r-5 of this title, except with respect to qualified disabled and working individuals (described in section 1396d(s) of this title), and except with respect to qualified Medicare beneficiaries, qualified severely impaired individuals, and individuals described in subsection (m)(1) of this section, no State not eligible to participate in the State plan program established under subchapter XVI of this chapter shall be required to provide medical assistance to any aged, blind, or disabled individual (within the meaning of subchapter XVI of this chapter) for any month unless such State would be (or would have been) assistance under such State plan if (in addition to meeting such other requirements as are or may be imposed under the State plan) the income of any such individual as determined in accordance with section 1396(b)(f) of this title (after deducting any supplemental security income payment and State supplementary payment made with respect to such individual, and incurred expenses for medical care as recognized under State law regardless of whether such expenses are reimbursed under another public program of the State or political subdivision thereof) is not in excess of the standard for medical assistance established under the State plan as in effect on January 1, 1972. (Emphasis added).
Connecticut is one of fifteen states which opted to participate as a § 209(b) state.
3 DIM regulations reflecting . this federal mandate are found at Regs. of Conn. State Agencies § 17-3f-I (Uniform Policy Manual §§ 5035.25 and 5035.30).
4 Regulations of the Departments of Administrative Services and Income Maintenance have been promulgated under the authority of § 4-12. See Regs. of Conn. State Agencies §§ 4-68a-I through 23; and Regs. of Conn. State Agencies § 17-3f-I (Uniform Policy Manual § 7520.05 C, D, and E).
5 42 U.S.C. § 1396(d)(3) requires the states' establishment of a minimum monthly maintenance needs allowance for each community spouse of an institutionalized Medicaid recipient. . Pursuant thereto, the Department of Income Maintenance has promulgated Regs. of Conn. State Agencies § . 17-3f-I (UPM § 5035.30B).
6 Conn. Gen. Stat. §§ 17-134a and 17-134e, quoted previously, demonstrate that "the legislature [has] recognized the primacy of the applicable federal provisions ... [which] set a limit upon the authority of the commissioner as well as furnish [sic] a guide to his administration of the program." Morgan v. White, 168 Conn. 336, 343-344 (1975).
7 42 U.S.C. § 1396r-5(d)(1)(B) provides for a CSA "only to the extent income of the institutionalized spouse is made available to (or for the benefit of) the community spouse".
8 Regs. of Conn. State Agencies § 17-3f-1 (Uniform Policy Manual § 5035.30.B).