809
providing the income otherwise specifically pro-
vides—
‘‘(i) if payment of income is made
solely in the name of the institutionalized
spouse or the community spouse, the in-
come shall be considered available only to
that respective spouse,
‘‘(ii) if payment of income is made in
the names of the institutionalized spouse
and the community spouse, 1⁄2 of the in-
come shall be considered available to each
of them, and
‘‘(iii) if payment of income is made in
the names of the institutionalized spouse
or the community spouse, or both, and to
another person or persons, the income
shall be considered available to each spouse
in proportion to the spouse’s interest (or,
if payment is made with respect to both
spouses and no such interest is specified,
1⁄2 of the joint interest shall be considered
available to each spouse).
‘‘(B) TRUST PROPERTY.—In the case of a
trust—
810
‘‘(i) except as provided in clause (ii),
income shall be attributed in accordance
with the provisions of this title; and
‘‘(ii) income shall be considered avail-
able to each spouse as provided in the
trust, or, in the absence of a specific provi-
sion in the trust—
‘‘(I) if payment of income is
made solely to the institutionalized
spouse or the community spouse, the
income shall be considered available
only to that respective spouse,
‘‘(II) if payment of income is
made to both the institutionalized
spouse and the community spouse, 1⁄2
of the income shall be considered
available to each of them, and
‘‘(III) if payment of income is
made to the institutionalized spouse
or the community spouse, or both,
and to another person or persons, the
income shall be considered available to
each spouse in proportion to the
spouse’s interest (or, if payment is
made with respect to both spouses
811
and no such interest is specified, 1⁄2 of
the joint interest shall be considered
available to each spouse).
‘‘(C) PROPERTY WITH NO INSTRUMENT.—
In the case of income not from a trust in which
there is no instrument establishing ownership,
subject to subparagraph (D), 1⁄2 of the income
shall be considered to be available to the insti-
tutionalized spouse and 1⁄2 to the community
spouse.
‘‘(D) REBUTTING OWNERSHIP.—The rules
of subparagraphs (A) and (C) are superseded to
the extent that an institutionalized spouse can
establish, by a preponderance of the evidence,
that the ownership interests in income are other
than as provided under such subparagraphs.
‘‘(c) RULES FOR TREATMENT OF RESOURCES.—
‘‘(1) COMPUTATION
OF
SPOUSAL
SHARE
AT
TIME OF INSTITUTIONALIZATION.—
‘‘(A) TOTAL
JOINT
RESOURCES.—There
shall be computed (as of the beginning of the
first continuous period of institutionalization of
the institutionalized spouse)—
‘‘(i) the total value of the resources to
the extent either the institutionalized
812
spouse or the community spouse has an
ownership interest, and
‘‘(ii) a spousal share which is equal to
1⁄2 of such total value.
‘‘(B) ASSESSMENT.—At the request of an
institutionalized spouse or community spouse,
at the beginning of the first continuous period
of institutionalization of the institutionalized
spouse and upon the receipt of relevant docu-
mentation of resources, the State shall promptly
assess and document the total value described
in subparagraph (A)(i) and shall provide a copy
of such assessment and documentation to each
spouse and shall retain a copy of the assess-
ment for use under this section. If the request
is not part of an application for medical assist-
ance under this title, the State may, at its op-
tion as a condition of providing the assessment,
require payment of a fee not exceeding the rea-
sonable expenses of providing and documenting
the assessment. At the time of providing the
copy of the assessment, the State shall include
a notice indicating that the spouse will have a
right to a fair hearing under subsection (e)(2).
813
‘‘(2) ATTRIBUTION OF RESOURCES AT TIME OF
INITIAL
ELIGIBILITY
DETERMINATION.—In deter-
mining the resources of an institutionalized spouse
at the time of application for medical assistance
under this title, regardless of any State laws relating
to community property or the division of marital
property—
‘‘(A) except as provided in subparagraph
(B), all the resources held by either the institu-
tionalized spouse, community spouse, or both,
shall be considered to be available to the insti-
tutionalized spouse, and
‘‘(B) resources shall be considered to be
available to an institutionalized spouse, but only
to the extent that the amount of such resources
exceeds the amount computed under subsection
(f)(2)(A) (as of the time of application for med-
ical assistance).
‘‘(3) ASSIGNMENT OF SUPPORT RIGHTS.—The
institutionalized spouse shall not be ineligible by rea-
son of resources determined under paragraph (2) to
be available for the cost of care where—
‘‘(A) the institutionalized spouse has as-
signed to the State any rights to support from
the community spouse,
814
‘‘(B) the institutionalized spouse lacks the
ability to execute an assignment due to physical
or mental impairment but the State has the
right to bring a support proceeding against a
community spouse without such assignment, or
‘‘(C) the State determines that denial of
eligibility would work an undue hardship.
‘‘(4) SEPARATE
TREATMENT
OF
RESOURCES
AFTER ELIGIBILITY FOR MEDICAL ASSISTANCE ES-
TABLISHED.—During the continuous period in which
an institutionalized spouse is in an institution and
after the month in which an institutionalized spouse
is determined to be eligible for medical assistance
under this title, no resources of the community
spouse shall be deemed available to the institutional-
ized spouse.
‘‘(5) RESOURCES
DEFINED.—In this section,
the term ‘resources’ does not include—
‘‘(A) resources excluded under subsection
(a) or (d) of section 1613, and
‘‘(B) resources that would be excluded
under section 1613(a)(2)(A) but for the limita-
tion on total value described in such section.
‘‘(d) 
PROTECTING
INCOME
FOR
COMMUNITY
SPOUSE.—