NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2501-05T12501-05T1

M.E.F.,

Plaintiff-Appellant,

v.

A.B.F.,

Defendant-Respondent.

_________________________________________________

Argued telephonically March 7, 2007 - Decided

Before Judges Kestin, Weissbard and Payne.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Gloucester

County, FM-08-905-05.

Mary Cay Trace and Donald B. Mark argued the cause for appellant (Trace & Jenkins and Donald B. Mark, attorneys; Erin L. Benson, on the brief).

Anthony J. Fiola, Assistant County Counsel,

argued the cause for respondent Gloucester County Division of Social Services (Samuel J. Leon, Gloucester County Counsel, attorney; Maria Detitto, on the brief).

Caitlin A. McLaughlin, Deputy Attorney General, argued the cause for respondent

Division of Medical Assistance and Health

Services (Stuart Rabner, Attorney General,

Michael J. Haas, Assistant Attorney General,

of counsel; Ms. McLaughlin, on the brief).

The opinion of the court was delivered by

PAYNE, J.A.D.

In this appeal, we are asked to construe provisions of the Medicaid Catastrophic Care Act of 1988 (MCCA or Act) and its state regulatory counterpart that, in situations in which a Medicaid-eligible spouse is institutionalized, provide a maintenance allowance for the support of the spouse who remains in the community. Specifically, we are asked to determine the mechanisms available to the "community spouse" to increase the amount of allocated support to be obtained from the "institutionalized spouse" and the level of proof required.

Medicaid is a jointly-funded, federal-state program that, among other things, provides medical assistance to needy persons who are institutionalized in nursing homes as the result of illness or other incapacity. Prior to 1988, the Medicaid eligibility criteria of the program required, in situations in which one spouse was institutionalized and needed Medicaid assistance to defray the cost of care and one remained in the community, that the couple "spend down" their assets and allocate what remained in a fashion that often impoverished community spouses (often wives) with few independent assets and little income. In order to remedy this circumstance, Congress passed the "spousal impoverishment provisions" of the Medicare Catastrophic Coverage Act of 1988, 42 U.S.C.A.