2006 New York Code - Treatment Of Income And Resources Of Institutionalized Persons.

 
    §  366-c.  Treatment  of  income  and  resources  of institutionalized
  persons.  1. Notwithstanding any other provision of law to the contrary,
  in determining the  eligibility  for  medical  assistance  of  a  person
  defined as an institutionalized spouse, the income and resources of such
  person and the person's community spouse shall be treated as provided in
  this section.
    2. (a) For purposes of this section an "institutionalized spouse" is a
  person  in a medical institution or nursing facility (i) who is expected
  to  remain  in  such  facility  or  institution  for  at  least   thirty
  consecutive  days,  or is receiving care, services and supplies pursuant
  to a waiver pursuant to  subsection  (c)  of  section  nineteen  hundred
  fifteen of the federal social security act; and (ii) who is married to a
  person who is not in a medical institution or nursing facility or is not
  receiving  services  pursuant  to a waiver pursuant to subsection (c) of
  section nineteen hundred fifteen of the federal social security act.
    (b) For purposes of this section, a   "community spouse" is  a  person
  who is the spouse of an "institutionalized spouse".
    (c)  For the purposes of this section, "spousal share" means an amount
  equal  to  one-half of the total value of the resources of the community
  spouse and the institutionalized spouse, as  of  the  beginning  of  the
  first  continuous  period  of institutionalization beginning on or after
  the thirtieth day of September, nineteen  hundred  eighty-nine,  to  the
  extent  that  either, or both, have an ownership interest as of the date
  of   the   continuous   period   of    institutionalization    of    the
  institutionalized spouse.
    (d)  For  the  purposes  of  this  section, "community spouse resource
  allowance" means the amount, if  any,  by  which  the  greatest  of  the
  following  amounts  exceeds  the  total value of the resources otherwise
  available to the community spouse:
    (i) (A) prior to January first, nineteen  hundred  ninety-five,  sixty
  thousand  dollars,  which  shall  be  increased  annually  by  the  same
  percentage as the percentage increase  in  the  federal  consumer  price
  index;
    (B)  on  and after January first, nineteen hundred ninety-five through
  June thirtieth,  nineteen  hundred  ninety-nine,  seventy-four  thousand
  eight  hundred  twenty dollars or such greater amount as may be required
  under federal law;
    (ii) the lesser of sixty thousand dollars  which  shall  be  increased
  annually  by  the  same  percentage  as  the  percentage increase in the
  federal consumer price index or the spousal share; or
    (iii) the amount established  for  support  of  the  community  spouse
  pursuant to a fair hearing under this section; or
    (iv) the amount transferred pursuant to court order for the support of
  the community spouse.
    (e) For purposes of this section, "resources" do not include resources
  excluded  in determining eligibility for benefits under title XVI of the
  federal social security act, as defined by the  commissioner  consistent
  with federal law.
    (f)  For  purposes  of  this  section, "family member" includes only a
  dependent or minor child, a dependent parent, or a dependent sibling  of
  the  institutionalized  spouse or the community spouse, who resides with
  the community spouse.
    (g) For purposes of this section,  "community  spouse  monthly  income
  allowance"  is the amount by which the minimum monthly maintenance needs
  allowance for the community spouse exceeds the monthly income  otherwise
  available to the community spouse unless a greater amount is established
  pursuant to a fair hearing under this section or pursuant to court order
  for the support of the community spouse.
    (h)  For  purposes of this section, "minimum monthly maintenance needs
  allowance"  is  an  amount  equal  to  one-twelfth  of  the   applicable
  percentage  of  the federal income official poverty line for a family of
  two, plus an excess shelter allowance,  provided  however,  such  amount
  shall  not be less than one thousand five hundred dollars per month, nor
  exceed one thousand five hundred dollars (as adjusted in the  discretion
  of  the commissioner for changes in the federal consumer price index for
  calendar years after nineteen hundred eighty-nine) per month.
    (i) For purposes of this section, "family allowance  for  each  family
  member"  is  an  amount  equal to the one-third times one-twelfth of the
  applicable percentage of the federal income official poverty line  to  a
  family of two, less the monthly income otherwise available to the family
  member.
    (j)  For  purposes  of this section, the "applicable percentage of the
  federal income official poverty line" shall be  one  hundred  twenty-two
  percent  as  of  September  thirtieth, nineteen hundred eighty-nine; one
  hundred  thirty-three  percent  as  of  July  first,  nineteen   hundred
  ninety-one  and  one  hundred  fifty  percent  on  and after July first,
  nineteen hundred ninety-two.
    (k) For purposes of this section, the "excess shelter allowance" shall
  be the amount  by  which  the  community  spouse's  rent,  mortgage,  or
  condominium  or  cooperative  maintenance fees, taxes and insurance, and
  utilities  exceed  thirty  percent  of  one-twelfth  of  the  applicable
  percentage of the federal income official poverty line for two persons.
    3.  Unless  established  by  a  preponderance  of  the evidence to the
  contrary, the following presumptions  shall  apply  in  determining  the
  availability  of  income  to  an institutionalized spouse in determining
  eligibility for medical assistance.
    (a) During any month in which an institutionalized spouse  is  in  the
  institution  or  facility,  no  income  of the community spouse shall be
  considered available to the institutionalized spouse except as  provided
  in this subdivision; and
    (b)  Income  solely in the name of the institutionalized spouse or the
  community spouse shall be considered available only to that spouse; and
    (c) Income in the  names  of  the  institutionalized  spouse  and  the
  community  spouse shall be considered available one-half to each spouse;
  and
    (d) Income in  the  names  of  the  institutionalized  spouse  or  the
  community  spouse,  or  both,  and also in the name of another person or
  persons, shall be considered available to each spouse in  proportion  to
  the  spouse's  interest or, if in the names of both spouses and no share
  is specified,  one-half  of  the  joint  interest  shall  be  considered
  available to each spouse; and
    (e)  (i)  Income  from  a  trust shall be considered available to each
  spouse in accordance with the provisions of the trust instrument, or, in
  absence of a specific trust provision allocating income,  in  accordance
  with  the  provisions of paragraphs (a) through (d) of this subdivision;
  and
    (ii)  Additionally,  income  from  a  trust  shall  be  attributed  in
  accordance  with  the  provisions  of  this  title  and title XIX of the
  federal social security act; and
    (f) Income in which there  is  no  instrument  establishing  ownership
  shall  be  considered  to be available one-half to the institutionalized
  spouse and one-half to the community spouse.
    4. In determining the amount of income to be applied toward  the  cost
  of  medical care, services and supplies of the institutionalized spouse,
  after the institutionalized spouse  has  been  determined  eligible  for
  medical  assistance,  the  following  items  shall  be deducted from the
  monthly income of the institutionalized spouse in the following order:
    (a) a personal needs allowance;
    (b) a community spouse monthly income allowance;
    (c) a family allowance for each family member;
    (d)  any  expenses incurred for medical care, services or supplies and
  remedial care for the institutionalized spouse.
    5. The following rules apply  in  determining  the  resources  of  the
  institutionalized  spouse  and  the  community  spouse  in  establishing
  eligibility for medical assistance:
    (a) All resources, including resources required to  be  considered  in
  determining eligibility pursuant to paragraph (c) of subdivision five of
  section  three  hundred  sixty-six  of  this  title,  held by either the
  institutionalized spouse or  the  community  spouse  or  both  shall  be
  considered  available to the institutionalized spouse to the extent that
  the value  of  the  resources  exceeds  the  community  spouse  resource
  allowance.
    (b)  An  institutionalized  spouse shall not be ineligible for medical
  assistance by reason of excess resources determined under paragraph  (a)
  of  this  subdivision,  if  the  institutionalized  spouse  executes  an
  assignment of support from the community spouse in favor of  the  social
  services district and the department, or the institutionalized spouse is
  unable  to execute such assignment due to physical or mental impairment,
  or to deny assistance would create an undue hardship, as defined by  the
  commissioner.
    (c)  After  the  month  in which the institutionalized spouse has been
  determined eligible for medical assistance during a continuous period of
  institutionalization, no resource  of  the  community  spouse  shall  be
  considered available to the institutionalized spouse.
    6.  Notwithstanding paragraph (c) of subdivision five of section three
  hundred sixty-six of this title and after an institutionalized spouse is
  determined eligible for medical assistance, transfers  of  resources  by
  the  institutionalized spouse to the community spouse shall be permitted
  to the extent that the transfers are solely to or for the benefit of the
  community spouse and do not exceed the value  of  the  community  spouse
  resource  allowance.  Such transfers must be made as soon as practicable
  after the determination of eligibility.
    7. (a) At the beginning or after  the  commencement  of  a  continuous
  period  of institutionalization, either spouse may request an assessment
  of the total  value  of  their  resources  or  a  determination  of  the
  community  spouse  monthly  income  allowance,  the amount of the family
  allowance,  or  the  method  of  computing  the  amount  of  the  family
  allowance, or the method of computing the amount of the community spouse
  income allowance.
    (b)  (i)  Upon  receipt of a request pursuant to paragraph (a) of this
  subdivision together with all relevant documentation of the resources of
  both spouses, the social services district shall assess and document the
  total value of the spouses' resources and provide  each  spouse  with  a
  copy of the assessment and the documentation upon which it was based. If
  the  request  is  not  part  of  an  application  for medical assistance
  benefits, the  social  services  district  may  charge  a  fee  for  the
  assessment  which  is  related  to the cost of preparing and copying the
  assessment and  documentation  which  fee  may  not  exceed  twenty-five
  dollars.
    (ii)  The  social  services district shall also notify each requesting
  spouse of the community spouse monthly income allowance, of the  amount,
  if  any,  of  the  family allowances, and of the method of computing the
  amount of the community spouse monthly income allowance.
    (c) The social services district shall also provide to  the  spouse  a
  notice  of  the  right to a fair hearing at the time of provision of the
  information requested under paragraph (a) of this subdivision or after a
  determination of eligibility for medical assistance. Such  notice  shall
  be  in the form prescribed or approved by the commissioner and include a
  statement advising the spouse of the right to a fair hearing under  this
  section.
    8.  (a)  If,  after  a  determination  on  an  application for medical
  assistance has  been  made,  either  spouse  is  dissatisfied  with  the
  determination  of  the community spouse monthly allowance, the amount of
  monthly  income  otherwise  available  to  the  community  spouse,   the
  computation  of  the  spousal  share  of  resources,  the attribution of
  resources or  the  determination  of  the  community  spouse's  resource
  allocation,  the  spouse  may  request  a  fair  hearing to dispute such
  determination. Such hearing shall be held  within  thirty  days  of  the
  request therefor.
    (b)  If  either  spouse  establishes  that  the community spouse needs
  income above the level established by the social  services  district  as
  the  minimum monthly maintenance needs allowance, based upon exceptional
  circumstances which result in significant financial distress (as defined
  by the commissioner in regulations), the department shall substitute  an
  amount  adequate  to provide additional necessary income from the income
  otherwise available to the institutionalized spouse.
    (c)  If  either  spouse  establishes  that  income  generated  by  the
  community  spouse resource allowance, established by the social services
  district, is inadequate to raise the community spouse's  income  to  the
  minimum  monthly  maintenance  needs  allowance,  the  department  shall
  establish  a  resource  allowance  for  the   spousal   share   of   the
  institutionalized  spouse  adequate  to  provide  such  minimum  monthly
  maintenance needs allowance.