Kan. Admin. Regs. § 129-6-106

Current through Register Vol. 43, No. 25, June 20, 2024

Section 129-6-106 - General requirements for consideration of resources, including real property, personal property, and income

(a) For purposes of determining eligibility for medical assistance, legal title shall determine ownership. In the absence of legal title, possession shall determine ownership.

(b) Each resource shall be of a nature that the value can be defined and measured, according to the following:

(1) Real property. The value of real property shall be initially determined by the latest uniform statewide appraisal value of the property, which shall be adjusted to reflect current market value. If the property has not been appraised or if the market value determined is not satisfactory to the applicant, recipient, or department, an estimate or appraisal of the value of the property shall be obtained from an impartial real estate broker. The cost of obtaining an estimate or appraisal shall be paid by the department.

(2) Personal property. The market value of personal property shall be initially determined using a reputable trade publication. If such a publication is not available or if there is a difference of opinion between the department and the individual regarding the value of the property, an estimate from a reputable dealer shall be used. The cost of obtaining an estimate or appraisal shall be paid by the department.

(c)

(1) Resources shall be considered available if the resources are actually available and the applicant or recipient has the legal ability to make the resources available. A resource shall be considered unavailable if there is a legal impediment that precludes the disposal of the resource. The applicant or recipient shall pursue reasonable steps to overcome the legal impediment, unless it is determined that the cost of pursuing legal action would exceed the resource value of the property or it is unlikely the applicant or recipient would succeed in the legal action. This paragraph shall also apply to the spouse of the applicant or recipient.

(2) Real property shall be considered unavailable if the property cannot be sold for one of the following reasons:

(A) The property is jointly owned, and its sale would cause undue hardship because of the loss of housing for the other owner or owners.

(B) The owner's reasonable efforts to sell the property have been unsuccessful.

(d) The resource value of property shall be the value of the applicant's or recipient's equity in the property. Unless otherwise established, the proportionate share of jointly owned real property and the full value of jointly owned personal property shall be considered available to the applicant or recipient. Resources held jointly with a non-legally responsible person may be excluded from consideration if the applicant or recipient demonstrates that all of the following conditions exist:

(1) The applicant or recipient has no ownership interest in the resource.

(2) The applicant or recipient has not contributed to the resource.

(3) Any access to the resource by the applicant or recipient is limited to those duties performed while the applicant or recipient is acting as an agent for the other person.

(e) Except for persons described in K.A.R. 129-6-34(c)(1) and 129-6-34(c)(2)(A) through (I), the nonexempt resources of all persons in the assistance plan shall be considered in determining eligibility. Exempted resources as defined in K.A.R. 129-6-108(d) and 129-6-109(e) that are put in a trust that meets the requirements of K.A.R. 129-6-109(c)(1) or (c)(2)(A) shall be regarded as nonexempt, unless paragraphs (k)(4) and (6) of this regulation are applicable.

(f)

(1) The combined resources of husband and wife, if they are living together, shall be considered in determining the eligibility of either individual or both individuals for the medical assistance program, except as noted in subsection (e) or unless otherwise prohibited by law.

(2) A husband and wife shall be considered to be living together if they are regularly residing in the same household. Temporary absences of either the husband or the wife for education, training, working, securing medical treatment, or visiting shall not interrupt the period of time during which the couple is considered to be living together.

(3) A husband and wife shall not be considered to be living together if they are physically separated and not maintaining a common life or if one or both enter into an institutional living arrangement, including either a medicaid-approved or non-medicaid-approved medical facility or an HCBS care arrangement.

(A) If only one spouse enters an institutional living arrangement, subsection (k) shall apply.

(B) If both spouses enter an institutional living arrangement, the combined resources of the husband and wife shall be considered available to both individuals for the month in which the institutional arrangement begins.

(g) Except as noted in subsection (e), the resources of an ineligible parent shall be considered in determining the eligibility of a minor child for the medical assistance program if the parent and child are living together. How-ever, these resources shall not be considered for any child in an institutional arrangement or an HCBS arrangement beginning with the month following the month in which the arrangement begins.

(h) Despite subsections (e), (f), and (g), the resources of an SSI beneficiary shall not be considered in the determination of eligibility for medical assistance of any other person.

(i) The conversion of real property and personal property from one form of resource to another shall not be considered to be income to the applicant or recipient, except for the proceeds from a contract for the sale of property.

(j) Income shall not be considered to be both income and property in the same month.

(k) If one spouse enters an institutional living arrangement, the other spouse remains in the community, and an application for medical assistance is made on behalf of the institutionalized spouse, an income determination according to the following requirements shall be applied first in determining eligibility:

(1) The separate income of each spouse shall not be considered to be available to the other spouse beginning in the month in which the institutional arrangement begins. One-half of the income that is paid in the names of both spouses shall be considered available to each spouse, unless it is otherwise established that less or more than this amount is available. Income that is paid in the name of either spouse, or in the name of both spouses and the name of another person or persons, shall be considered available to each spouse in proportion to the spouse's interest, unless it is otherwise established that less or more than this amount is available.

(2)

(A) A monthly income allowance for the community spouse shall be deducted from the income of the institutionalized spouse in determining the amount of patient liability for each person in an institutional living arrangement or in a spenddown status for each person in an HCBS arrangement.

(B) The income allowance for the community spouse, when added to the income already available to that spouse, shall not exceed 150 percent of the official federal poverty-level income guideline for two persons plus the amount of any excess shelter allowance. "Excess shelter allowance" shall mean the amount by which the community spouse's expenses for rent or mortgage payments, taxes and insurance for the community spouse's principal residence, and the supplemental nutrition assistance program (SNAP) standard utility allowance, 7 U.S.C. 2014(e), exceed 30 percent of 150 percent of the federal poverty-level income guideline amount specified in this paragraph.

(C) The maximum monthly income allowance that may be provided under paragraph (k)(2) shall be $1,500. The $1,500 limitation shall be increased at the beginning of each calendar year by the same percentage as the percentage increase in the consumer price index for all urban consumers between September 1988 and the September before the applicable calendar year.

(D) If a greater income allowance is provided under a court order of support or through the Kansas administrative hearing process, that amount shall be used in place of the limits specified in paragraph (k)(2)(C).

(3) A monthly income allowance for each dependent family member shall be deducted from the income of the institutionalized spouse in determining the 300 percent income limit as specified in K.A.R. 129-6-54(d)(1) and the amount of client obligation for each person in an institutional living arrangement or in an HCBS arrangement.

(A) "Dependent family member" shall mean a person who is a minor or dependent child, dependent parent, or dependent sibling of either spouse and who lives with the community spouse.

(B) The allowance for each member shall be equal to one-third of 150 percent of the official federal poverty-level income guideline for two persons.

(C) An allowance for a dependent family member shall not be provided if the family member's gross income exceeds 150 percent of the federal poverty-level income guideline for two persons.

(4) If the spouse is institutionalized on or after September 30, 1989, the nonexempt real property and personal property of both spouses shall be considered in determining the eligibility of the institutionalized spouse, based on the amount of property in excess of the community spouse property allowance specified in paragraph (k)(6), whether or not this allowance will be made.

(A) If the excess property is within the allowable resource standards of K.A.R. 129-6-107, the institutionalized spouse shall be eligible.

(B) In the month following the first month of eligibility for the institutionalized spouse, only the property of the institutionalized spouse shall be considered available in determining continuing eligibility, except for property to be transferred in accordance with paragraph (k)(6).

(5) If the spouse was institutionalized before September 30, 1989, the real property and personal property of each spouse shall be considered available to the other spouse in the month in which the institutional arrangement began. Thereafter, the property of each spouse shall not be considered available to the other spouse.

(6) The institutionalized spouse may make available to the community spouse a property allowance that, when added to the property already available to the community spouse, would be equal to one-half of the total value of the property owned by both spouses at the beginning of the first period of continuous institutionalization beginning on or after September 30, 1989.

(A) This property allowance shall not exceed $60,000 and shall be at least $12,000. Both the $12,000 and the $60,000 limits shall be increased at the beginning of each calendar year by the same percentage as the percentage increase in the consumer price index for all urban consumers between September 1988 and the September before the applicable calendar year.

(B) If a greater property allowance is provided under a court order of support or through the Kansas administrative hearing process, that amount shall be used in place of the limits specified in paragraph (k)(6)(A). If a greater property allowance is required to increase the community spouse's income to the amount allowed under paragraphs (k)(2)(B) and (C), a fair hearing officer shall take into account the income-generating value of the current property allowance as well as the additional property allowance requested. The property provided shall be invested so that income is maximized, including through a single-premium annuity, and based on the salable or market value of the property.

(7) The amount of property received by the community spouse as a result of the property allowance determined in paragraph (k)(6) shall not be considered in determining the eligibility of the institutionalized spouse, except as provided in paragraph (k)(4). If the institutionalized spouse will be eligible based upon transferring sufficient property to the community spouse to equal the amount of the property allowance, the institutionalized spouse shall be given not more than 90 days from the date of application to transfer the property. Additional time may be allowed for good cause. Pending disposition of the property, the institutionalized spouse shall be eligible during this period if all other eligibility factors are met.

(l) The resources of a noncitizen's sponsor and the sponsor's spouse shall be considered in determining eligibility for the sponsored noncitizen.

Kan. Admin. Regs. § 129-6-106

Authorized by and implementing K.S.A. 2013 Supp. 65-1,254 and 75-7403; effective, T-129-10-31-13, Nov. 1, 2013; effective Feb. 28, 2014.