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December 8, 1978


The opinion of the court was delivered by: RICHEY


This case is before the Court on cross motions for summary judgment. *fn1" The basic issue in this case is whether regulations *fn2" promulgated by the defendants, which allow states to "deem" income from a noninstitutionalized spouse available to an institutionalized spouse, are inconsistent with the requirements of the Medicaid statute, in particular 42 U.S.C. § 1396a(a)(17). The Court finds there to be no genuine issue of material fact in dispute and, for the reasons hereinafter stated, will grant summary judgment to the plaintiff on its statutory claim for relief.


 Plaintiff, Gray Panthers seeks in this action to invalidate as inconsistent with the Medicaid statute regulations promulgated by the defendants which allow certain states to "deem" available to an institutionalized spouse income from the noninstitutionalized spouse.

 Medicaid is a cooperative federal-state program established pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 Et seq. In accordance with the Act, the Secretary of Health, Education and Welfare promulgates regulations, through the Administrator of the Health Care Financing Administration, which supplement the statutes in providing the framework in which participating states must develop and operate their Medicaid programs. States are not required to institute a Medicaid program, but if they choose to do so, they must submit to the Secretary of HEW a satisfactory "state plan" which fulfills all requirements of the Act. 42 U.S.C. § 1396a. The state plan describes the nature and scope of the state's Medicaid program and provides assurances that the state will administer its program in conformity with the requirements of the federal statute, regulations, and other applicable official issuances of the Department. 45 C.F.R. § 201.2. If the state submits a plan which fulfills all the requirements of the Act, the Secretary must approve it. 42 U.S.C. § 1396a(b). The state thereupon becomes entitled to grants of federal funds in reimbursement of a portion of the expenditures which it makes in providing specific types of medical assistance to eligible individuals under the plan in accordance with the federal conditions. 42 U.S.C. § 1396b; 45 C.F.R. § 201.5.

 Section 1902 of the Social Security Act, 42 U.S.C. § 1396a, provides, in pertinent part:

(a) A state plan for medical assistance must
(17) include reasonable standards . . . for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter, (B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient . . ., (C) provide for reasonable evaluation of any such income or resources, and (D) do not take into account the financial responsibility of any individual for any applicant or recipient of assistance under the plan unless such applicant or recipient is such individual's spouse or such individual's child . . ..

 Prior to April 13, 1977, all participating states were subject to the same controlling federal regulations. Section 248.3 of Title 45 of the Code of Federal Regulations stated that, with respect to the categorically needy and the medically needy (if included in the state plan), a state plan must "provide that only such income and resources as are Actually available will be considered and the income and resources will be reasonably evaluated." (emphasis added). On the basis of section 1902(a) of the Act and these regulations states were expected to evaluate the eligibility of individuals applying for Medicaid who required institutionalization and whose spouses continued to live in the couple's home. Despite the requirement that only "available income" should be considered, states considered an arbitrary portion of the income of non-institutionalized spouses available for the care of institutionalized spouses whether in fact that income was available and whether the noninstitutionalized spouse was actually able to make such an amount available. This imputing of income on the basis of an arbitrary formula, without regard to the amount actually available to the institutionalized spouse, is commonly referred to as "deeming."

 New regulations were promulgated and finalized, effective April 13, 1977. The introductory language of the regulations read, in part:

(b) With respect to both the categorically needy and, if they are included in the plan, the medically needy, a State plan must:
(1) General. Provide that only such income and resources as are considered available under the provisions of this section may be considered as an applicant's or recipient's income in determining eligibility or the amount of assistance and that income and resources will be reasonably evaluated.

 42 C.F.R. § 448.3. The effect of this new introductory language is the imposition of different requirements amongst the various jurisdictions. The thirty-four states and the District of Columbia which automatically provide Medicaid assistance to recipients of Supplementary Security Income ("SSI") are now specifically required to use the SSI rules on availability of income. 42 Fed.Reg. 2685. When Congress initially created SSI, it intended to require that all states provide Medicaid assistance automatically to all SSI recipients. Because this would have resulted in a huge increase in the Medicaid rolls in the various states, and Congress feared that some states might opt out of the Medicaid program altogether, Congress added a provision which gave states the option of utilizing more restrictive eligibility conditions. Under this provision, section 1902(f) of the Act, 42 U.S.C. § 1396a(f), a state was permitted to use any financial eligibility condition which was no more restrictive than that in use under the state's January 1972 eligibility conditions for its categorical programs. Therefore, those states which elect this option may deem income available from noninstitutionalized spouses which may not in fact be available. At present, fifteen states have chosen the optional basis for determining Medicaid eligibility provided by 42 U.S.C. § 1396a(f).

 In its complaint, plaintiff raises three claims for relief. First, plaintiff claims that the "deeming" of income from a noninstitutionalized spouse to an institutionalized Medicaid recipient is in violation of 42 U.S.C. § 1396a(a) (17), and is, therefore, void. Second, plaintiff contends that the "deeming" of income creates an irrebuttable presumption which violates the due process clause of the fifth amendment. Third, plaintiff contends that the deeming of income violates the equal ...

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