Can a Spouse Refuse the Support of His or Her Spouse to Qualify for Medicaid
By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Attorney
Federal Law (42 U.S.C.A. § 1396r-5 (c) (3)) allows a community spouse to refuse to pay for the institutionalized spouse, applying for Medicaid which if properly authorized, stops the State from considering his or her funds in the calculation of eligibility by the institutionalized spouse to qualify for Medicaid, live in a nursing home, assisted living residence or home based program. The practical effect of this statute means New Jersey must then pursue collection action against the other spouse for support in order to be compensated for the case being provided.
There are 3 ways to declare spousal refusal. The first is the infirmed spouse must assign “to the State any rights to support from the community spouse.” 42 U.S.C.A. § 1396r-5 (c) (3) (A). If no express assignment is possible due to the physical or mental disability of the spouse, the State can still pursue a “support proceeding against a community spouse without such assignment.” Id. at (B). Finally, refusal can be granted if denial would cause an “undue hardship.” Id. at (C).
Despite the federal existence of this procedure, many states’, including New Jersey, have on the books Medicaid regulations that have not enacted nor allow a procedure like this to be used by the community spouse. See N.J.A.C. § 10:71–4.8. However, the 2nd Circuit Court of Appeals ordered a neighboring state’s Department of Social Services to grant a couple’s request for the community spouse to refuse to help the institutionalized spouse under this procedure, assigning the infirmed spouse’s rights to the State of Connecticut and allowing that person to qualify for Medicaid. Even though the state (Connecticut) does not have this assignability procedure available, the court held that the federal statute was unambiguous in allowing such a refusal to be performed for purposes of determining eligibility. Id. at 234. As long as there is adequate standing (denial of Medicaid by New Jersey) that would have been granted if this “spousal refusal option” were in place and used by the couple, there is a strong legal case to go to the federal courts and argue that it must be implemented and recognized in NJ.
To discuss your NJ Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.