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General Laws

Section 21A. (a) In determining the eligibility for medical assistance of an institutionalized spouse, the division shall comply with all the requirements set forth in 42 U.S.C. 1396r-5, including, but not limited to, the following:

(1) Upon a determination of eligibility for medical assistance of an institutionalized spouse, the division shall send notification to both spouses.

(2) The notice shall include, but shall not be limited to, the following:

(i) the type and amount of all countable assets;

(ii) the amount of the community spouse monthly income allowance, as defined in 42 U.S.C. 1396 r-5(d)(2);

(iii) the amount of any family allowances described in 42 U.S.C. 1396 r-5(d)(1)(C);

(iv) the minimum monthly maintenance needs allowance of the community spouse, as defined in 42 U.S.C. 1396r-5(d)(3);

(v) the community spouse resource allowance and its method of computation; provided, however, that the division shall establish the maximum community spouse resource allowance permissible under 42 U.S.C. s.1396r-5(f)(2);

(vi) the right to a fair hearing concerning ownership or availability of income or resources, and the determination of the community spouse monthly income allowance or community spouse resource allowance, and the right to a decision within ninety days of a timely request for a fair hearing;

(vii) a citation to this section and to any applicable regulation of the division of medical assistance; and

(viii) the following language:—

“The community spouse (that is, the spouse of the institutionalized person) may have the right to retain a larger share of the combined spousal resources if the income of the community spouse falls below his or her minimum monthly maintenance needs allowance. It will be necessary to request a hearing in order to establish whether the community spouse has a right to retain a larger share of assets; at the hearing, it will be necessary to show that the income of the community spouse is less than the minimum monthly maintenance needs allowance, and that the community spouse needs additional resources to generate enough income to bring the actual income up to the minimum monthly maintenance needs allowance.”

(b)(1) Upon the request by the institutionalized spouse, the community spouse, or a representative acting on behalf of either spouse for an assessment of assets not made in connection with an application for medical assistance, the division shall send notification to the spouse making the request.

(2) The notice shall include, but shall not be limited to, the following:

(i) the type and amount of all countable assets;

(ii) the right to a fair hearing concerning ownership or availability of income or resources, and the determination of the community spouse monthly income allowance or community spouse resource allowance at the time Medicaid eligibility is determined, and the right to a decision within ninety days of a timely request for a fair hearing;

(iii) a citation to this section of the General Laws and to any applicable regulation of the division of medical assistance; and

(iv) the following language:

“The community spouse (that is, the spouse of the institutionalized person) may have the right to retain a larger share of the combined spousal resources, depending on his or her monthly income and monthly needs. Further information regarding the right of the community spouse to the spousal resources will be provided at the time that the Medicaid eligibility of the institutionalized spouse is determined.”

(c) In making determinations under this section, the division shall revise the community spouse resource allowance as permitted or required by federal law. Either spouse shall have the right to request a fair hearing at which, if it is shown that the income of the community spouse is less than the minimum monthly maintenance needs allowance of the community spouse, the referee shall revise the community spouse resource allowance, using methods permitted or required by federal law, to a level sufficient to generate the shortfall in income. The division shall calculate interest income on the investment of the community spouse resource allowance using the rates reported in the Bank Rate Monitor Index on the date of the hearing.

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