16 Del. Admin. Code § 20000-20950
Determine couples' combined countable resources for the month of application. Deduct from the couples' countable resources owned at the time of application a protected amount which is the greater of the following amounts:
the community spouse resource allowance (provided it does not exceed the maximum)
OR
the current State spousal share ($25,000)
Compare the remaining resources to the Medicaid resource limit of $2,000. If the remaining resources are over $2,000, the institutionalized spouse is ineligible until the combined countable resources are reduced to the greater of the following:
the community spouse resource allowance plus $2000
OR
the current State spousal share ($25,000) plus $2,000
An institutionalized spouse who (or whose spouse) has excess resources shall not be found ineligible per Section 1924(c)(3)(C) of the Social Security Act where the state determines that denial of eligibility on the basis of having excess resources would work an undue hardship. Resources may be depleted in whatever manner the client/spouse wishes as long as there is no transfer for less than fair market value. See Section 20350.6 Transfer of Assets.
Once eligibility has been established, resources not used to determine eligibility for institutionalized spouses (i.e., the amount of spousal resource allowances) may be transferred to community spouses to assist such spouses in meeting their needs in the community. Thus, resources are not merely deemed available (or attributed) to community spouses in initial eligibility periods, but are actively made available to meet their needs in the community. Spouses who intend to transfer resources for this purpose are encouraged to do so as soon as is practicable before the first regularly scheduled redetermination of eligibility under.
Resources transferred to community spouses as well as other specified parties, without receiving fair market value for the property transferred, do not adversely affect continuing eligibility of institutionalized spouses. See Section 20350.6 Transfer of Assets
NOTE: Although the revised transfer of assets provisions allow the institutionalized spouse to transfer all of his or her resources to the community spouse without regard to the resource allowance, the initial eligibility determination will still attribute resources in excess of the community spouse allowance to the institutionalized spouse.
After eligibility has been determined the eligibility worker must provide a written notice to both spouses including the following information as appropriate:
the amount of combined countable resources at the beginning of the first continuous period of institutionalization;
the method used to compute the community spouse resource allowance, and
institutionalized spouses' right to rebut through a fair hearing ownership or availability of income and resources.
This policy relates to the procedure described in §1924(d) of the Social Security Act (42 U.S.C. § 1396r-5) for increasing the amount of the married couple's resources that are not counted in determining the institutionalized spouse's eligibility for Medicaid, in order to protect income for the spouse who is remaining in the community (community spouse).
Section 6013 of the Deficit Reduction Act of 2005 (Public Law 109-171), enacted on February 8, 2006, mandates the State must consider all income of the institutionalized spouse that can be allocated to the community spouse, in order to bring the community spouse's income up to the minimum monthly maintenance needs allowance (MMMNA), before raising the community spouse's resource allowance to adequately provide for that income.
The income first methodology requires that an institutionalized spouse who applies for Medicaid must first divert income to his or her community spouse (who is not applying for Medicaid) before the institutionalized spouse may increase the amount of the couple's resources that would be protected from consideration in evaluating the institutionalized spouse's Medicaid eligibility. This is referred to as the "income first" methodology for determining the extent of protection of the couple's assets and applies to transfers and allocations of income and resources made on or after the date of enactment by individuals who become institutionalized spouses on or after such date.
16 Del. Admin. Code § 20000-20950