In this Article

• KNOW YOUR RIGHTS:  Download Consumer Fact Sheet on Tips for Keeping More Income, including Spousal Impoverishment Protections.:

1.  What are Spousal Impoverishment Rules?  

2. Which Married couples can Use Spousal Impoverishment Protections?  

3.  Spousal Impoverishment Protections for INCOME

4.  Spousal Impoverishment Protections for ASSETS / Resources

5.  WARNING:   Spousal Impoverishment rules DO NOT apply at the time you apply for Medicaid in order to enroll in MLTC or a Waiver, UNLESS you are applying for Immediate Need Services

6. How and When to Request Rebudgeting with Spousal Impoverishment Protections - AFTER enrolled in MLTC plan or Waiver (If did not apply for Immediate Need services) 

7. MLTC/Waiver Spouse Has Choices - to Use a Pooled Trust and "Single Person" Budgeting if Community Spouse's Income is Too High to Qualify for a Community Spouse Income Allowance

8.  Past History of Spousal Impoverishment in NYS

9.  Legal Citations & Forms 

A.  What are Spousal Impoverishment Rules?

Since 1998, a spouse of a nursing home resident on Medicaid is allowed to keep a reasonable level of income and resources to live on, while still permitting Medicaid payment for the nursing home resident's care.  Congress enacted the "spousal impoverishment protections" in 1988 in response to stories of elderly community spouses -- mostly women -- whose husbands were in nursing homes.  Medicaid required all of the husband's income to be paid to contribute to the cost of care.  Some were practically starving.  Others sought divorces in order to escape the crushing financial burden.    An important sidelight of the 1988 "spousal impoverishment" legislation was that it permitted states to budget couples on home-and-community-based services (HCBS) "waiver" programs under these same income and asset rules, giving these couples a much-needed financial cushion. 

  B.  Which Married Couples Can Use Spousal Impoverishment Protections?

Spousal Impoverishment protections are available in these community settings:

1. one spouse is  enrolled in a Managed Long Term Care plan or

2. one spouse is enrolled in a Home-and-Community-Based Services (HCBS) waiver --Traumatic Brain Injury (TBI), Nursing Home Transition and Diversion (NHTD), and OPWDD  waivers. 

3. one spouse receives Immediate Need personal care or CDPAP services pursuant to 16 ADM 02.  Procedures for accessing immediate need personal care services are outlined in this article.

Part of the Affordable Care Act called the PPACA required these protections in the first two categories above - MLTC and HCBS waiver programs,  effective January 1, 2014.  Click here for the exact language of the ACA -PPACE law on spousal impoverishment.  This 2014 law  originally had a sunset clause.  This provision has been extended serveral times, most recently in 2022 through Sept. 30, 2027.  See CMS Bulletin 8/15/23. 

Even before the ACA was enacted, NYS long provided spousal impoverishment protections in the Lombardi waiver program, which closed down.   See this past history. 

C.  Spousal Impoverishment Protections for INCOME  

The spouse receiving the MLTC or other waiver services may deduct from his/her income these allowances and deductions (figures here for 2026):

1. SPOUSE -an amount to bring his or her spouse's income up to the "Minimum Monthly Maintenance Needs Allowance" (MMMNA).  In 2026, the MMNA is $4,066.50. The allowance provided to non-applying spouse is called a "community spouse monthly income allowance" (CSMIA).   The CSMIA is calculated by subtracting the non-applying spouse's own income and the monthly cost of his/her health insurance premiums from the MMMNA.

2. Family member allowance (FMA), if applicable, is an allowance of $902 per dependent family member up to a maximum of $2,705  (2026).  This is for minor children, dependent children of any age, or dependent parents (defined as having over 50% of their needs met by either spouse) 

3. Personal needs allowance (PNA) for the waiver participant - This is $653 in 2026 (the difference between the regular Medicaid level for ONE PERSON and TWO PERSON households).

4. Health insurance premium - may deduct the cost of his/her own Medigap and other insurance premiums.

The remainder after taking all of these deductions is the MLTC/waiver recipient's spend-down.   

2026 levels are in    GIS 26 MA/05 (attachment)

USE this Excel budgeting template - plug in applicant's and spouse's income to calculate pend-down.  Use the tab lableled Spousal Impoverishment .

D.   Spousal Impoverishment Protections for ASSETS or RESOURCES 

The MLTC spouse may keep $33,038 in his/her own name  (2026)(uses the resource limit for single non-MAGI Medicaid recipients (Aged, Blind Disabled)     

PLUS the Community Spouse may have up to the greater of $74,820 or one-half of the couple's total combined assets up to $162,660   (2026).   This total includes:

1. the Community Spouse's own resources in his/her own name,
2. plus any of the MLTC Spouse's own resources that exceed $33,038 which have been transferred to the community spouse,
3. plus any of their joint resources.  

The MLTC applicant spouse must actually transfer his/her own individual and their joint resources that exceed the individual resource limit  to the Community Spouse.

PLUS both spouses may have a burial fund, pre-paid funeral agreement, and an IRA or other retirement funds, provided that distributions are being taken, even if they are under age 73.5.    See Medicaid  NYS Eligibilty Fact Sheet  and funeral planning article.

The balance is deemed available to MLTC spouse for cost of care.  Rules are in NYS DOH MRG Resources Chapter at pp. 331 -335.

E.  WARNING:  Spousal Impoverishment protections DO NOT apply at the time an individual applies for Medicaid seeking home care services - unless applying for Immediate Need Home Care  

If you apply for Medicaid in order to enroll in MLTC or in a Home & Community Based Services (HCBS) Waiver such as the NHTD or TBI waiver,  Spousal Impoverishment protections DO NOT APPLY in the initial budget.  See more below about how Medicaid is budgeted initially for married people seeking MLTC. 

If you apply for Medicaid SEEKING IMMEDIATE NEED PERSONAL CARE SERVICES, spousal impoverishment protections DO APPLY initially.  This is explained in 16 ADM 02. with procedures and tips here.

For those who apply for Medicaid in order to get MLTC or to enroll in an HCBS waiver, the local Medicaid program must first determine eligibility using regular Community Medicaid rules for income and assets, without the spousal protections.  The spousal impoverishment protections are only used "post-eligibility."  This means that initially, an applicant may have a large spend-down, even though he will not have a spend-down once he enrolls in an MLTC plan and then requests spousal impoverishment budgeting.  

On the initial Medicaid application, here are some tips for avoiding or minimizing  the spend-down if seeking to enroll in MLTC or a Waiver, and if not applying for Immediate Need home care.

• SPOUSAL REFUSAL - Community Spouse not applying for MLTC may consider submitting a "Spousal Refusal."  This means his or her income and assets will not be counted for the MLTC applicant's eligibility.  Beware that the county has the right to sue a "refusing spouse" for support - to recover the Medicaid funds paid for services when the refusing spouse refused.  However, if the MLTC applicant immediately enrolls in an MLTC plan and requests rebudgeting with spousal protections, there would be no Medicaid expenses  to recover in a support suit.  Here is the Spousal Refusal form used in NYC (HRA's form revised in 2025).  Other counties may have their own forms, or this form can be adapted. 

  • A spousal refusal can be used for the spouse's income and assets/resources.  At the time of application, the MLTC applicant spouse's countable resources must be brought down to the individual Medicaid asset level above.  Any excess resources must be transferred to the community spouse before the month of the application.  Consult an elder law attorney if there are excess assets.

• If the MLTC applicant has a spend-down  or "excess income" just counting his or her own income, even with the community spouse doing a "spousal refusal," make clear that the Medicaid applicant is seeking to enroll in MLTC and ask for eligibility CODE 06.  Medicaid applicants who would have a spend-down must request CODE 06  so that Medicaid is activated, allowing for MLTC enrollment.   See  NYS DOH GIS 2014 MA/10 -- 06 to 30 Conversion for MLTC Enrollees.   (May 5, 2014)  Otherwise, their Medicaid coverage does not become active until they submit medical bills that meet the spend-down, according to complicated rules explained here  and on the State's website.   Many people applying for Medicaid to pay for long-term care services can't activate their Medicaid coverage until they actually begin receiving the services, because they don't have enough other medical bills that meet their spend-down.  This creates a catch-22, because they cannot enroll in an MLTC plan  until Medicaid is activated.  Eligibility CODE 06 gives them "Provisional Medicaid" eligibility to enable them to enroll.   See Medicaid Alert dated July 12, 2012.   and see NYLAG Troubleshooting Guide re MLTC Enrollment Barriers.

• In New York City and some other counties, MLTC plans are required to fax HRA a "conversion form and  package" to activate Medicaid when the consumer has a spend-down.  Download Conversion cover sheet here.- FORM HCSP-3022  Despite extensive education by HRA, many plans still fail to do this.

  • HRA FAQ - procedures for MLTC plans to enroll members who have a spend-down. 

  • A May 2014, State GIS directive explains that as long as CODE 06 was used on the application, the code will automatically change to CODE 30 full eligibility when the MLTC plan enrolls the individual.  So.. no "conversion" form should be necessary.

  • See NYLAG Troubleshooting Guide.

F.  HOW and WHEN to Request Spousal Impoverishment Budgeting ATER the individual has enrolled in an MLTC plan  

1. Complete the MAP-751w form (revised  7/14/2025)  and  the DOH  "Request for Assessment - Spousal Impoverishment" (DOH-5298 01/2023) form  The MAP-751w form is available in languages other than English here..  See this May 2020 Medicaid Alert.  (Outside NYC, just use the DOH Request for Assesment form).

2. Fax or email the two documents described above  to HRA Medicaid Undercare Processing Division (UPD)  --
   Fax 1-917-639-0837. e-mail  undercareproviderrelations@hra.nyc.gov.

3. If consumer already has a surplus, also send the same documents to the Surplus Income Program at 
   fax: 917-639-0645.

4. Follow-up with HRA Medicaid Eligibility Information Services (EIS) at
   929-221-0865 after a week or two to confirm receipt.

In March 2014, HRA published a Medicaid Alert regarding Spousal Impoverishment Budgeting for applicants/recipients in MLTC; which now must be modified in light of  GIS 14 MA/025 - Spousal Impoverishment Budgeting with Post-Eligibility Rules Under the Affordable Care Act  (PDF) issued later in 2014.

G.   MLTC Spouse May be Treated as SINGLE - and May Use a Pooled Trust -- if the Spouse's Income is too high to qualify for a Spousal Impoverishment Income Allowance   

 A Married MLTC or Waiver Recipient has the Option of Using a SINGLE person's income limit, and may Use a Pooled Trust to deposit her own income exceeding the SINGLE's income limit.   In other words - the community spouse and their income can be ignored if that is more beneficial.

The new directive rescinds an earlier  NYS DOH GIS 14 MA/015, issued August 5, 2014, and reinstates two even earlier directives.  Pending further clarification from the federal CMS, "districts are to resume applying the policy provided in  GIS 12 MA/013, "Spousal Impoverishment Budgeting with Post-Eligibility Rules for Individuals Participating in a Home and Community-Based Waiver Program" and NYS DOH GIS 13 MA/018,  "Spousal Impoverishment and Transfer of Assets Rules for Certain Individuals Enrolled in Managed Long Term Care." These GIS messages provide for spousal impoverishment budgeting with post-eligibility rules only when it is more advantageous to the applicant. 

This directive was the result of advocacy by the NYS Bar Association Elder Law Section.  To find out more about the policies that were rescinded, see here. 

• When are Spousal impoverishment Protections  Unfavorable, so Applicant would do Better using a Pooled Trust with regular Community Budgeting?

Spousal protections can be unfavorable if the individual still has a high spend-down even after the spousal impoverishment allowances are allocated.  This can happen because the Medicaid spouse's income is very high, and/or because the community spouse's income is high.In this situation, the Medicad spouse is allowed to be counted as a household of one and deposit his or her excess income into a supplemental needs trust in order to reduce his or her spend-down.  

Example of circumstances when spousal protections are NOT favorable and Better to use Pooled Trust.   Change the EXAMPLE above  so that community spouse Chris' income was not $2702.90 but was $4702.90.     Chris would not be entitled to any Community Spouse Monthly Income Allowance (CSMIA) because Chris' own income  would be equal to or more than the Minimum Monthly Maintenance Needs Allowance (MMNA). 

MLTC Spouse Sam has the option of using community budgeting based just on Sam's own income as follows.  Community Spouse Chris' Income Does Not Count.  Use Medicaid income level for ONE.   GIS 12 MA/013

• BACKGROUND:  What State Policy was Rescinded by GIS 14 MA/025? ?

The August 2014 directive NYS DOH GIS 14 MA/015 that is now rescinded had required use of the spousal impoverishment protections even when they were unfavorable.  But under the State's interpretation from August 2014, these married individuals were not allowed to use a supplemental needs trust.  The State's view was that the spousal impoverishment protections are used in "post-eligibility budgeting" which is the same budgeting used in nursing homes.  Just as one cannot reduce one's NAMI in a nursing home by depositing excess income into a pooled trust, the State's view was that married individuals in an MLTC plan cannot reduce their spend-down by using a pooled trust.  ("NAMI" is Net Available Monthly Income - the name for "spenddown" for people in nursing homes on Medicaid).

Suffolk County was the only county, to our knowledge, that had already rebudgeted married MLTC recipients.  Couples  with combined gross income exceeding about $3400/ month  were impacted (then, roughly the sum of the PNA and the CSMIA).   If the MLTC recipient was using a pooled trust, Suffolk DSS had told them they were no longer allowed to use the trust and budgeted them with a high spend-down that must be paid to the MLTC plan.  All of these individuals should now be rebudgeted and allowed to use the pooled trusts. 

The new directive reinstates two previous GIS directives -- NYS DOH GIS 13 MA/018 and GIS 12 MA/013 to the extent that they gave married individuals receiving MLTC or other HCBS waiver services an OPTION of choosing NOT to use the spousal impoverishment protections, if it was more favorable for the couple not to use them.  It could be more favorable NOT to use the protections if a married MLTC recipient instead used a pooled trust to eliminate his or her Medicaid spend-down.  Even if s/he would otherwise have a very high spend-down, by using a pooled trust, she qualifies for Medicaid and MLTC without any spend-down.  Even though the spousal impoverishment protections may reduce the spend-down, they may not eliminate it altogether if the individual's or spouse's income is high enough.  

H.  Past History of Spousal Impoverishment Protections in New York State -
2006 Threat to End the Protections

Since they were first available in 1988, New York State has always exercised the option of applying the spousal impoverishment protections to the flagship Lombardi program (long term home health care program) and other waivers.   The continued use of spousal impoverishment protections was thrown into doubt in 2006, when, under the Bush Administration, CMS held up renewal of New York's Lombardi waiver, reversing its policy of 20 years and insisting that New York drop the spousal protections. CMS re-interpreted federal regulations to prohibit the spousal protections in waiver programs, restricting them to nursing home care.

The dispute between NYS and CMS over spousal protections reached at least a temporary resolution in 2010 after the national health reform law, section 2404 of the Patient Protection and Affordable Care Act (PPACA) mandated that all waiver programs nationally must include spousal impoverishment beginning in June 2014 through 2019.   This law amends 42 USC 1396r-5(h)(1)(A) to define an "institutionalized spouse" -- whose spouse is eligible for the impoverishment protections -- to include individuals who are eligible for HCBS waiver services.  Posted at p. 205 of this link and see excerpt copied below. 

Although this mandate didn't take effect until January 2014, in 2010 NYS was able to reach agreement with CMS under its 1115 Partnership plan extension to permit spousal impoverishment protections to continue in the Lombardi program.  See GIS 10 OLTC/003.   The Lombardi program, however, was phased out.   Lombardi program participants were required to enroll in an MLTC plan if they were dual eligibles.  Thus continuation of the spousal impoverishment protections for MLTC was critical.   As first implemented by NYS under GIS 12 MA/013, participants in the Lombardi, TBI or NHTD waiver programs, who have a community spouse must have eligibility determined under spousal impoverishment budgeting only if it was advantageous to the recipient. 

Section 2404 of the Patient Protection and Affordable Care Act (PPACA) 

 SEC. 2404. PROTECTION FOR RECIPIENTS OF HOME AND COMMUNITYBASED SERVICES AGAINST SPOUSAL IMPOVERISHMENT.

“During the 5-year period that begins on January 1, 2014, section 1924(h)(1)(A) of the Social Security Act (42 U.S.C. 1396r–5(h)(1)(A)) shall be applied as though ‘‘is eligible for medical assistance for home and community-based services provided under subsection (c), (d), or (i) of section 1915, under a waiver approved under section 1115, or who is eligible for such medical assistance by reason of being determined eligible under section 1902(a)(10)(C) or by reason of section 1902(f) or otherwise on the basis of a reduction of income based on costs incurred for medical or other remedial care, or who is eligible for medical assistance for home and community-based attendant services and supports under section 1915(k)’’ were substituted in such section for ‘‘(at the option of the State) is described in section 1902(a)(10)(A)(ii)(VI)’’.

This federal provision has been extended several times, most recently through  Sept. 30, 2023. See CMS Bulletin May 4, 2021.

I.  LEGAL CITATIONS and FORMS.  

• NYS LAW NY Social Services Law 366-c,

• NYS REGULATIONS 18 NYCRR 360-4.9,

• NYS Medicaid Reference Guide (MRG)  at 278-282.  Note that pp. 283-84 of the MRG, which explain spousal budgeting in the TBI and NHTDW home and community based waiver programs, were last updated in 2011, when the longstanding spousal protections were temporarily banned.  (see history above).  Thus this MRG section does not explain the spousal protections as they apply to MLTC.   See March 2014 DOH  Medicaid Update   Vol. 30 No. 3 at pp. 5-8:

• CURENTLY EFFECTIVE NYS DOH DIRECTIVES:

  • NYS DOH GIS 14 MA/025 - Spousal Impoverishment Budgeting with Post-Eligibility Rules Under the Affordable Care Act  (PDF),

  • Was rescinded, but reinstated 11/3/2014 GIS 12 MA/013, "Spousal Impoverishment Budgeting with Post-Eligibility Rules for Individuals Participating in a Home and Community-Based Waiver Program" and 

  • Was rescinded but reinstated 11/3/2014 NYS DOH GIS 13 MA/018,  "Spousal Impoverishment and Transfer of Assets Rules for Certain Individuals Enrolled in Managed Long Term Care."

• RESCINDED DOH DIRECTIVE  NYS DOH GIS 14 MA/015 -- Affordable Care Act - Requirement to Apply Spousal Impoverishment Budgeting with Post-Eligibility Rules to Couples with a Spouse Receiving Home and Community-Based Services Pursuant to a Waiver or Enrolled in a Managed Long Term Care Plan. 

• NYS DOH Medicaid UPDATE explaining Spousal Impoverishment rules 

  • See "Information Notice to Couples with an Institutionalized Spouse," (p. 6-8 of link)

  • Instructions to MLTC plans, nursing homes and other providers to provide this notice to all married consumers (page 5 of link) and

  • "Request for Assessment - Spousal Impoverishment" (DOH-5298 01/2023) form  

• LDSS-4346 form "Institutionalized Spouse Budget Worksheet" (1995 version) - this is the only version we could find.  Please send any updated version to vbogart@nylag.org and we will post it.   

• Federal law - Section 2404 of the Patient Protection and Affordable Care Act (PPACA), which, effective January 1, 2014, required all States to expand  spousal impoverishment protections for all married couples with a spouse receiving Managed Long Term Care (MLTC) or other Home-and-Community-Based Services under a waiver --Traumatic Brain Injury (TBI), Nursing Home Transition and Diversion (NHTD), and OPWDD  waivers.  Click here for the exact language of the ACA -PPACA  law on spousal impoverishment.   This 2014 law  originally had a sunset clause.  This provision has been extended serveral times, most recently in 2022 through Sept. 30, 2027.  See CMS Bulletin 8/15/23. 

For more information

See webinar of NY Metropolitan Elder Law Institute, a project of UCS Trust Services, "Pooled Trusts and the Changing MLTC Landscape - Special Issues for Married Couples, by Valerie Bogart, recorded May 18, 2016 (Also discusses other budgeting strategies to reduce the spend-down, including the housing disregard for those discharged from NH or Adult Home, and pooled trusts generally.