Cite as: 534 U. S. 473 (2002)
Stevens, J., dissenting
transfer that it requires: "[T]he department may not [substitute an increased CSRA] unless the institutionalized spouse makes available to the community spouse the maximum monthly income allowance permitted." Wis. Stat. § 49.455(8)(d) (1999-2000) (emphasis added). The state statute requires that an institutionalized spouse "make available" income to the community spouse. In other words, Wisconsin requires a preeligibility transfer of income from the institutionalized spouse to the community spouse. Because 42 U. S. C. § 1396r-5(d)(1) permits the income transfer to take place only after eligibility has been established, the Wisconsin statue is in conflict with the plain language of the MCCA.5
Second, although the MCCA permits an institutionalized spouse to transfer income to the community spouse after eligibility has been established, it by no means requires that she do so.6 Thus, by requiring the CSMIA transfer, and therefore not increasing the CSRA to meet the community spouse's income needs, the Wisconsin statute mandates an
5 The Court asserts in response that the dissent fails to consider that the Wisconsin statute only requires the institutionalized spouse to make available that which she is "permit[ed]" to make available pursuant to subsection (4)(b). Ante, at 492, n. 10. But subsection (4)(b), which is substantially identical to § 1396r-5(d)(1), describes the amount of income that can be made available posteligibility, whereas subsection (8)(d) of the Wisconsin statute requires that it be made available as a condition of eligibility. In overlooking the difference between the permissive character of the federal provision and the mandatory character of the Wisconsin statute, the Court's response continues to ignore the text of the Wisconsin statute.
6 Counsel for the Wisconsin Department of Health and Family Services conceded at oral argument that the income transfer is not required. Tr. of Oral Arg. 14 ("It doesn't explicitly require the transfer"). The Court itself waffles between describing the income transfer as something that has the "potential" to occur, ante, at 489, and something that "will be," ante, at 491. Nevertheless, the Court's analysis of the 42 U. S. C. § 1396r- 5(e)(2)(C) hearing clearly contemplates a mandatory posteligibility transfer.
503
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