1. All income that is actually available shall be considered. Income is actually available when it is at the disposal of an applicant, recipient, or responsible relative; when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care; or when the applicant, recipient, or responsible relative has the lawful power to make the income available or to cause the income to be made available. Income shall be reasonably evaluated. This subsection does not supersede other provisions of this chapter which describe or require specific treatment of income, or which describe specific circumstances which require a particular treatment of income.

2. The financial responsibility of any individual for any applicant or recipient of Medicaid will be limited to the responsibility of spouse for spouse and parents for a child under age twenty-one. Such responsibility is imposed as a condition of eligibility for Medicaid. Except as otherwise provided in this section, the income of the spouse and parents is considered available to the applicant or recipient, even if that income is not actually contributed. Biological and adoptive parents, and stepparents, are treated as parents.

3. All spousal income is considered actually available unless: a. A court order, entered following a contested case, determines the amounts of support that a spouse must pay to the applicant or recipient; b. The spouse from whom support could ordinarily be sought, and the property of such spouse, is outside the jurisdiction of the courts of the United States or any of the United States; or c. The applicant or recipient is subject to marital separation, with or without court order, and there has been no collusion between the applicant or recipient and that person's spouse to render the applicant or family member eligible for Medicaid.

4. All parental income is considered actually available to a child under age twenty-one unless the child is: a. Disabled and at least age eighteen; b. Living independently; c. Living with a parent who is separated from the child's other parent, with or without court order, if the parents did not separate for the purpose of securing Medicaid benefits; or d. Filing an income tax return and the parents are not claiming the child as a tax dependent.

5. Income may be received weekly, biweekly, monthly, intermittently, or annually. However income is received, a monthly income amount must be computed.

6. Payments from any source, which are or may be received as a result of a medical expense or increased medical need, are not income, but are considered to be medical payments which must be applied toward the recipient's medical costs. These payments include health or long-term care insurance payments, veterans administration aid and attendance, veterans administration reimbursements for unusual medical expenses, and veterans administration homebound benefits intended for medical expenses. a. Health or long-term care insurance payments must be considered as payments received in the months the benefit was intended to cover and must be applied to medical expenses incurred in those months.

1. b. Except for individuals subject to a MAGI-based methodology, veterans administration aid and attendance benefits must be considered as payments received in the months the benefit was intended to cover and must be applied to the medical expense incurred in those months;
2. c. Except for individuals subject to a MAGI-based methodology, veterans administration reimbursements for unusual medical expenses must be considered as payments received in the months in which the increased medical expense occurred and must be applied to the medical expense incurred in those months; and
3. d. Except for individuals subject to a MAGI-based methodology, veterans administration homebound benefits intended for medical expenses must be considered as payments received in the months the benefit was intended to cover and must be applied to the medical expenses incurred in those months. This does not apply to homebound benefits which are not intended for medical expenses.7. a. In determining ownership of income from a document, income must be considered available to each individual as provided in the document, or, in the absence of a specific provision in the document:- (1) If payment of income is made solely to one individual, the income shall be considered available only to that individual; and
4. (2) If payment of income is made to more than one individual, the income shall be considered available to each individual in proportion to the individual's interest.- b. In the case of income available to a couple in which there is no document establishing ownership, one-half of the income shall be considered to be available to each spouse.
5. c. Except in the case of income from a trust, the rules for determining ownership of income are superseded to the extent that the applicant or recipient can establish that the ownership interests are otherwise than as provided in those rules.8. Except for individuals not subject to a MAGI-based methodology, countable income from a business entity that employs anyone whose income is used to determine eligibility is:- a. If the applicant or recipient and other members of the Medicaid unit, in combination, own a controlling interest in the business entity, an amount determined as for a self-employed individual or family under section 75-02-02.1-38;
6. b. If the applicant or recipient and other members of the Medicaid unit, in combination, own less than a controlling interest, but more than a nominal interest, in the business entity, an amount determined by:
7. (1) Subtracting any cost of goods for resale, repair, or replacement, and any wages, salaries, or guarantees (but not draws) paid to all owners of interests in the business entity who are actively engaged in the business to establish the business entity's adjusted gross income, from the business entity's gross income;
8. (2) Establishing the applicant or recipient's share of the business entity's adjusted gross income, based on the Medicaid unit's proportionate share of ownership of the business entity;
9. (3) Adding any wages, salary, or guarantee paid to the applicant's or recipient's share of the business entity's adjusted gross income; and

(4) Applying the disregards appropriate to the type of business as described in section 75-02-02.1-38; or

c. If the applicant or recipient and other members of the Medicaid unit, in combination, own a nominal interest in the business entity, and are not able to influence the nature or extent of employment by that business entity, the individual's earned income as an employee of that business entity, plus any unearned income gained from ownership of the interest in the business entity.

9. For an individual subject to a MAGI-based methodology, the individual's share of the net income plus any gross wages paid from the entity is countable income from the entity.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; June 1, 2004; January 1, 2014.

Law Implemented: NDCC 50-24.1-01, 50-24.1-37; 42 USC 1396a(e)