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November 01, 2011


Susan Estep


I have been trying to find documentation regarding Medicaid Spousal Protection.

My married brother is in a Nursing Home in Colorado and I am his finicial POA. The person at the County Dept of Human Services that is handling his case has stated that out of his income from gas royalties and SS Disability (deposited into an income trust account) that the Nursing Home is to be paid his paitent portion first and then if there is any money left over, the community spouse is to be paid up to the amount the Dept of Human Services has allowed for spousal allowance. Anything left over is to be held in another account to pay back to Medicaid when he is no longer disabled or deceased.

My brother, his wife and I do not understand why the nursing home is paid first. The county Dept of Humand Services and another branch possible in Denver are not returning my calls nor have they provided documentation.

Based upon paying the nursing home first, the left over for spousal allowance was $43. one month around $500 a couple of others and then once his disability kicked in $800 to $1,000. Besides his wife who is disabled and not able to draw disability due to enough work hour credits, they have two boys 14 and 6.

Any advice, documentation or links to documentation will be greatly appreciated.


Susan Estep

Patricia Dudek

Let me check something more on this and I will get back to you.

Patricia Dudek


I received the following information from an attorney in Colorado. I hope it helps and that you'll keep us informed.

I saw your email about deductions from the monthly income of an institutionalized spouse in Colorado and am attaching the current regulations. The county worker is wrong – or just not reading all of the regulations (by the way, this is the second case that has come to my attention like this: do you have any idea what county this person resides in? I think it’s a training issue).

The regulations (first attachment), at §8.100.7.Q is the methodology for calculating the MIA and §8.100.7.T makes it clear that the only deduction that takes precedence over the MIA is the personal needs allowance ($50 at present). In the second attachment, I included the regulations governing Calculation of Resident Income. Section 8.483.32 makes it the responsibility of the nursing facility to collect the resident’s payment for the cost of care. In that case, the facility may be at fault for an over-zealous collection of income. Either way, there is an incorrect interpretation of the regulations by someone.

If you can find out which county (and which nursing home) this person is residing in, I can look into it (it’s part of my job as Legal Assistance Developer for the Older Americans Act programs). I referred the other case to the State Medicaid agency to work with the county on the correct interpretation of the regulations and would be happy to do so in this case as well.

Mary Catherine Rabbitt, Esq.
Colorado Legal Assistance Developer
The Legal Center for People with Disabilities and Older People
455 Sherman Street, Suite 130
Denver, CO 80203-4403
Fax: 303-722-0720

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