39-786. Division of aggregate resources authorized for purpose of determining medical assistance eligibility; conditions and limitations; written interspousal agreement; written statement of secretary
39-786
39-786. Division of aggregate resources authorized for purpose ofdetermining medical assistance eligibility; conditions and limitations;written interspousal agreement; written statement of secretary of socialand rehabilitation services; lien authorized, limitations; rules andregulations; increase in dollar amounts based on consumer price index.(a) For the purpose of determining medical assistanceeligibility pursuant to K.S.A. 39-709 and amendments thereto and the rightto and obligation of medical support for the purposes of K.S.A. 39-709 and39-719a, and amendments thereto, a qualified applicant or qualifiedrecipient and such applicant's or recipient's spouse may divide theiraggregate resources, whether owned jointly or singly, into separate sharesas provided by this section. Subject to the provisions of subsection (g),if a qualified applicant or qualified recipient and such applicant's orrecipient's spouse so divide their aggregate resources:
(1) Only the separate nonexempt resources of the applicant or recipientshall be considered in determining eligibility for medical assistance: (A)If the applicant's or recipient's spouse is not applying for or receivingmedical assistance, in the month following the month in which the applicantor recipient enters an institution to receive long-term care or begins toreceive home and community based services, or at any time thereafter; or(B) if the applicant's or recipient's spouse is applying for or receivingmedical assistance, in the seventh month following the month in which theapplicant or recipient enters an institution to receive long-term care orbegins to receive home and community based services, or at any time thereafter;
(2) the secretary of social and rehabilitation services, in determiningthe eligibility of the applicant or recipient for long-term institutionalcare or home and community based services, shall not take into accountthe separate nonexempt resources of the applicant's or recipient's spouseand shall not require proof of adequate consideration for any transfer madein dividing resources in accordance with this section;
(3) the resources received by the qualified applicant's or qualifiedrecipient's spouse pursuant to this section shall not be considered to be available tothe applicant orrecipient for future medical support and the qualified applicant's orqualified recipient's spouse shall have no duty of future medical supportof the qualified applicant or qualified recipient from such resources;
(4) except as otherwise provided in this section, neither the secretarynor the state may recover from the resources received by the qualifiedapplicant's or qualified recipient's spouse pursuant to this section anyamounts paid for future medical assistance provided to the qualifiedapplicant or qualified recipient; and
(5) neither the secretary nor the state shall be subrogated to orassigned any future right of the qualified applicant or qualified recipientto medical support from the resources of the qualified applicant's orqualified recipient's spouse.
(b) If a qualified applicant or qualified recipient and such applicant'sor recipient's spouse choose to divide their aggregate resources pursuantto this section, the division shall be in such a manner that the qualifiedapplicant's or qualified recipient's spouse owns singly aggregate nonexemptresources with a value which is the greater of: (A) $12,000, subject toadjustment under subsection (i); or (B) the lesser of (i) the spousal sharecomputed under subsection (c) or (ii) four times the amount described in clause (A).
(c) There shall be computed, as of the beginning of a continuous periodof long-term care of the qualified applicant or qualified recipient: (A)The total value of the nonexempt resources to the extent the qualified applicantor qualified recipient or such applicant's or recipient's spouse has anownership interest; and (B) a spousal share which is equal to 1/2 of such total value.
(d) A division of resources pursuant to this section shall be evidenced bya written interspousal agreement, signed by both spouses or their personalrepresentatives, to divide the resources as provided by this section and tomake any transfers necessary to carry out the division. In the case of aqualified applicant, a notice of intent to divide resources shall be filedwith the secretary at the time of application. In the case of a qualifiedrecipient, such notice shall be filed with the secretary at thetime the recipient and the recipient's spouse desire to divideresources. The division shall apply to resources owned on the date thenotice of intent is filed and the division shall be presumed to take placeon that date if a copy of the agreement to divide resources and evidence,satisfactory to the secretary, of completion of any transfers necessary toeffect the division are filed with the secretary within 90 days afterthe notice of intent is filed or within such additional time as permittedby the secretary, in the secretary's discretion, for good cause shown.
(e) Once a qualified applicant for or qualified recipient of medicalassistance has divided resources with a spouse pursuant to this section,such applicant or recipient may not thereafter again divide resources underthis section with such spouse or any subsequent spouse.
(f) The secretary of social and rehabilitation services shall furnish toeach qualified applicant or qualified recipient and such applicant's orrecipient's spouse, and any personal representative thereof, a clear andsimple written statement that:
(1) The total resources of the qualified applicant or qualifiedrecipient and of the applicant's or recipient's spouse may be divided hereunder;
(2) upon such a division, the spouse's nonexempt resources will not beconsidered in determining eligibility of the applicant or recipient forlong-term institutional care or home and community based services and thespouse shall not be required to use the resources received by the spousepursuant to this section to provide future medical support to the qualifiedapplicant or qualified recipient;
(3) a lien for medical assistance paid may be imposed against theproperty of the qualified applicant or qualified recipient and the propertyof the applicant's or recipient's spouse but only to the extent authorizedunder this section.
(g) If a qualified recipient of medical assistance and such recipient'sspouse have divided their resources as provided by this section, thesecretary, may establish, enforce and foreclose a lien for any amount of medicalassistance provided the recipient but only to the extent authorized under42 U.S.C. 1396p, as in effect on the effective date of this act.
(h) The secretary shall adopt such rules and regulations as necessary toimplement and enforce the provisions of this section.
(i) The dollar amounts specified in subsection (b) and K.S.A.39-787(a) shall be increased by the same percentage as the percentageincrease in the consumer price index for all urban consumers, all items,the United States city average, between September, 1987, and the Septemberbefore the calendar year involved.
History: L. 1988, ch. 143, § 2; May 1.