dissenting.
Where the noninstitutionalized spouse has income of $1,525.61, Medicaid regulations of the Secretary of Health and Human Services require the income recipient to turn over all but about $925 for care of the institutionalized spouse. See Minn.R. 9505.0075, subp. 3(D) (1987) (permitted by 42 C.F.R. § 435.734 (1987)). This demand is lawful, according to the United States Supreme Court, singularly because the enactment and intention of Congress treats income of either spouse as available to the couple, based on the expectation that spouses are expected to support each other. Schweiker v. Gray Panthers, 453 U.S. 34, 44-9, 101 S.Ct. 2633, 2640-43, 69 L.Ed.2d 460 (1981). The Court rejected a circuit court decision, favored by dissenting justices, that faulted treatment of the married couple as a “single economic unit.” Id. at 42, 101 S.Ct. at 2639; see id. at 53, 56, 101 S.Ct. at 2645, 2646 (Stevens, J., dissenting).
Sharing of income with the institutionalized spouse is one thing, says the Secretary in federal regulations, but sharing with the noninstitutionalized spouse is something else. In the latter case, the regulations provide, the earning spouse need not share at all, a result moderated inadequately by laws permitting the spouse at home an allowance ($402 here) equal to what she could earn if receiving assistance herself. 42 C.P.R. § 435.832(c)(2)(i) (1987). This double standard is arbitrary and capricious and it is the burden of the courts to prevent its application. Schweiker, 453 U.S. at 44, 101 S.Ct. at 2640 (although legislative effect is to be given these regulations, judicial review is to ensure that they are not arbitrary or capricious). In fact, the regulations are perverse, expanding or limiting a vital concept as deemed convenient in order to take the maximum sum of money from the couple’s household. Cf. 42 U.S.C.A. § 1396 (West Supp.1983) (purpose of medical assistance statute to enable families and individuals to “attain or retain capability for independence or self-care”). If $600 would be available to cover costs of caring for appellant Rita Rindahl were she to be in residential care, reason dictates that no more be available to her spouse in similar circumstances.
The majority discusses but distinguishes Ninth Circuit decisions that require overlooking the source of a couple’s income. State of Washington v. Bowen, 815 F.2d 549 (9th Cir.1987); Department of Health Services of the State of California v. Secretary of Health and Human Services, 823 F.2d 323 (9th Cir.1987). Although these cases deal with state community property law, it should not be overlooked that the couple’s interest in individual income is also the law of Congress, insofar as Medicaid eligibility is concerned, according to the United States Supreme Court. Schweiker, 453 U.S. at 45-7, 101 S.Ct. at 2641-42.
Is there an element of reason in the regulations upheld here because they avoid subsidizing Rita Rindahl more than Medicaid recipients? Mattingly by Mattingly v. Heckler, 784 F.2d 258 (7th Cir. 1986). If this view is reasonable, what explains permitting the larger subsidy to the couple when the income recipient is at home? Congress has treated couples as a single economic unit, and it is unacceptable *695to capriciously disregard that treatment. Although public assistance laws may compel impoverishment for eligibility, the courts are not free to disregard instances where Congress has determined this should not be so.
Finally, we are asked to spare Minnesota any loss of Medicaid funds. However, this case does not involve litigation of a federal claim of nonconformity. 42 U.S.C.A. §§ 1316(a)(3), 1396c (West Supp.1988). Neither the jurisdiction nor standard for our appellate review has been questioned on the issue litigated here in the state courts. If we have jurisdiction to act on local administration of Medicaid funds, we cannot be bound by what we predict federal executive authorities might decide.
I respectfully dissent.