504
Stevens, J., dissenting
income transfer that Congress left optional. Furthermore, if the Wisconsin statute could be interpreted to require only a prediction, rather than a mandatory preeligibility transfer, there are several plausible reasons why such a "prediction" may not ultimately come to fruition. For example, the institutionalized spouse might choose not to contribute to the support of the community spouse. Alternatively, the institutionalized spouse's income could fluctuate over time and may not in a given month be sufficient to augment the community spouse's monthly income. Finally, a hearing examiner's finding of ineligibility—based on a fictional prediction that a posteligibility transfer of income would occur—might (as it did in this case) actually prevent the posteligibility transfer from occurring.7 If any of these events occurs, a primary purpose of the statute—ensuring the financial security of the community spouse—will have been undermined. Thus, either the Wisconsin statute mandates the income transfer, in which case it contradicts the MCCA, or it diminishes the § 1396r-5(e)(2)(C) hearing into a thought experiment that is inconsistent with the purpose of the statute.
Third, an important posteligibility provision of the statute, which expresses the "name-on-the-check" policy of the MCCA, also exposes why the Wisconsin statute is in conflict with the federal one. Section 1396r-5(b)(2)(A)(i) states: "[Posteligibility,] if payment of income is made solely in the name of the institutionalized spouse or the community spouse, the income shall be considered available only to that
7 Under the hearing examiner's ruling in this case, the predicted post-eligibility transfer of income could not occur because he found respondent ineligible for assistance. It is ironic, to say the least, that the predicate for the so-called "income first" approach is a hypothetical transfer of income that is actually precluded by the application of that approach. The effect of the Wisconsin statute in this case is to preclude the reallocation of resources that (a) is expressly authorized by § 1396r-5(e)(2)(C), (b) would establish respondent's eligibility, and (c) make it possible for the post-eligibility transfer to take place.
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