(a) For the purposes of this section, the following definitions shall apply:
(1) “Opposite-sex spouse” means a person of the opposite sex who is legally married to an applicant for, or recipient of, home and facility care.
(2) “Registered domestic partner” means a person that meets the requirements of Section 297 of the Family Code and with whom the applicant for, or recipient of, home and facility care shares the common residence.
(3) “Same-sex spouse” means a person of the same sex who is legally married to an applicant for, or recipient of, home and facility care.
(b) In addition to the requirements of Section 14015.1, the department shall consider, at initial application or redetermination, whether an undue hardship, as described in subdivision (c), exists prior to finding that an applicant or recipient is subject to a period of ineligibility for medical assistance for home and facility care pursuant to this article. No person shall be subject to a period of ineligibility for medical assistance for home and facility care at the time of the initial application or redetermination if the department determines that an undue hardship exists.
(c) An undue hardship shall be found to exist under any of the following circumstances:
(1) The applicant for, or recipient of, home and facility care transferred all or any portion of his or her ownership interest in the shared principal residence to his or her same-sex spouse or registered domestic partner.
(2) (A) Subject to the requirements of subparagraph (B), the applicant for, or recipient of, home and facility care transferred his or her ownership interest in resources other than the shared principal residence to his or her same-sex spouse or registered domestic partner and the value of those resources does not exceed the value of resources that the individual could transfer to his or her same-sex spouse or registered domestic partner and does not exceed the community spouse resource allowance that would be available to that person if he or she was an opposite-sex spouse. When considering whether an undue hardship exists under this paragraph, the Medi-Cal eligibility determination rules applicable to resource evaluations for an applicant for, or recipient of, home and facility care and his or her opposite-sex spouse shall be used to determine the resources available to an applicant for, or recipient of, home and facility care and his or her same-sex spouse or registered domestic partner.
(B) If the value of the resources transferred exceeds the limit specified in subparagraph (A), the amount of resources transferred that meet the limit shall be subject to the undue hardship exception specified in subparagraph (A) and the amount of resources transferred in excess of the limit shall not be subject to an undue hardship exception under this section and shall be considered a transfer of assets for less than fair market value.
(3) (A) Subject to the requirements of subparagraph (B), the applicant for, or recipient of, home and facility care transferred his or her income or right to receive income to his or her same-sex spouse or registered domestic partner and the amount of the transferred income does not exceed the amount of income that the individual could transfer to his or her same-sex spouse or registered domestic partner and does not exceed the maximum monthly spousal income allowance that would be available to that person if he or she was an opposite-sex spouse. When considering whether an undue hardship exists under this paragraph, the Medi-Cal eligibility determination rules applicable to income evaluations for an applicant for, or recipient of, home and facility care and his or her opposite-sex spouse shall be used to determine the income available to an applicant for, or recipient of, home and facility care and his or her same-sex spouse or registered domestic partner.
(B) If the amount of income transferred exceeds the limit specified in subparagraph (A), the amount of income transferred that meets the limit shall be subject to the undue hardship exception specified in subparagraph (A) and the amount of income transferred in excess of the limit shall not be subject to an undue hardship exception under this section and shall continue to be included in the applicant’s or recipient’s share of cost. To the extent that the excess income transferred was the applicant’s or recipient’s right to receive a future income stream and that transfer can be revoked, the applicant or recipient shall revoke the transfer. To the extent that the transferred income stream cannot be revoked, that future income stream shall be considered a transfer of assets for less than fair market value.
(d) This section shall be implemented pursuant to the requirements of Title XIX of the federal Social Security Act (42 U.S.C. Sec. 1396 et seq.) and any regulations adopted pursuant to that act.
(e) (1) The department shall submit a state plan amendment or seek other federal approval before implementing the undue hardship circumstances identified in this section. The department shall request, in the state plan amendment or other federal approval request, that the effective date of approval be retroactive to January 1, 2012.
(2) This section shall be implemented only if, and to the extent that, a state plan amendment is approved or other federal approval is obtained and federal financial participation is available.
(f) Notwithstanding Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, the department shall implement this section by means of all-county letters or similar instructions, without taking regulatory action.
(Added by Stats. 2011, Ch. 729, Sec. 8. (AB 641) Effective January 1, 2012.)