502
Stevens, J., dissenting
meant "community spouse's income plus any deduction from the institutionalized spouse's income that may in the future be made available to him." As is clear, both of these arguments require altering the plain text of the statute.
Rather than admitting that its reading strains the text of the MCCA, the Court engages in an analytical sleight of hand: It conceives of the transfer of income that is commanded by the Wisconsin statute as a condition of eligibility, not as a required transfer, but only as a prediction of things to come. Ante, at 491-492 ("In short, if the (e)(2)(C) hearing is properly comprehended as a preeligibility projection of the couple's posteligibility situation, as we think it is, we do not count it unreasonable for a State to include in its estimation of the 'community spouse's income' in that posteligibility period an income transfer that will then occur"). The Court's temporal manipulation of the § 1396r-5(e)(2)(C) hearing is innovative; but it is wrong for at least three reasons.
First, in speculating that Wisconsin does not actually require a preeligibility transfer, but only predicts a future income transfer, the Court neglects to consider the text of the state statute in issue. In holding that Wisconsin's "income-first" approach is permissible, the Court states: "The theoretical incorporation of a CSMIA [Community Spouse Monthly Income Allowance] into the community spouse's future income at that hearing has no effect on the preeligibility allocation of income between the spouses. A CSMIA becomes part of the community spouse's income only when it is in fact transferred to that spouse, § 1396r- 5(d)(1)(B), which may not occur until '[a]fter [the] institutionalized spouse is determined . . . to be eligible.' § 1396r- 5(d)(1)." Ante, at 493 (emphasis added). The Court's own statement, which replaces the statutory phrase "made available to" from § 1396r-5(d)(1)(B) with the phrase "transferred to," exposes precisely why the Wisconsin statute is in conflict with the MCCA. As the text of the Wisconsin statute makes clear, there is nothing "theoretical" about the income
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