N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-4.10

Current through Register Vol. 46, No. 45, November 2, 2024

Section 360-4.10 - Treatment of income and resources of institutionalized spouses

(a) Definitions. Notwithstanding any regulations to the contrary, when used in this section, unless the context clearly requires otherwise:

(1) Applicable percent of the annual Federal poverty level means 122 percent as of September 30, 1989, 133 percent as of July 1, 1991, and 150 percent on and after July 1, 1992.

(2) Community spouse means person who is the spouse of an institutionalized person and who is residing in the community.

(3) Community spouse monthly income allowance means the amount by which the community spouse's minimum monthly maintenance needs allowance, as defined in paragraph (8) of this subdivision, exceeds the community spouse's otherwise available monthly income, or such greater amount as may be established by fair hearing decision or court order for the support of the community spouse.

(4) Community spouse resource allowance.

(i) Prior to January 1, 1996, community spouse resource allowance means the amount by which the greatest of the following amounts exceeds the total value of the community spouse's resources:

(a) $60,000 ( as increased annually by the same percentage as the percentage increase in the Federal consumer price index);

(b) the amount established for support of the community spouse pursuant to a fair hearing under Part 358 of this Title; or

(c) the amount transferred pursuant to court order for the support of the community spouse.

(ii) On and after January 1, 1996, community spouse resource allowance means the amount by which the greatest of the following amount exceeds the total value of the community spouse's resources:

(a) $74,820;

(b) the lesser of the spousal share (as defined in paragraph [11] of this subdivision), or $60,000 ( as increased annually by the same percentage as the percentage increase in the Federal consumer price index);

(c) the amount established for support of the community spouse pursuant to a fair hearing under Part 358 of this Title; or

(d) the amount transferred pursuant to court order for the support of the community spouse.

(5) Family member means a minor child, dependent child, dependent parent or dependent sibling of the institutionalized spouse or of the community spouse who resides with the community spouse. For purposes of this paragraph, a person is dependent if over 50 percent of his/her maintenance needs are met by the community spouse and/or the institutionalized spouse.

(6) Family allowance for each family member is an amount equal to one third of the amount by which the applicable percent of one twelfth of the annual Federal poverty level for a family of two members exceeds the amount of the available monthly income of that family member.

(7) Institutionalized spouse means a person who: is in a medical institution or nursing facility and is likely to remain in a medical institution or nursing facility for at least 30 consecutive days or is receiving home and community-based services provided pursuant to a waiver under section 1915(c) of the Federal Social Security Act and is likely to receive such services for at least 30 consecutive days; and who is married to a spouse who is not in a medical institution or nursing facility or who is not likely to receive such home and community-based services pursuant to a waiver under section 1915(c) of the Social Security Act for 30 consecutive days.

(8) Minimum monthly maintenance needs allowance means an amount equal to $1,500 to be increased annually by the same percentage as the percentage increase in the Federal consumer price index.

(9) Resources do not include those disregarded or exempt under sections 360- 4.4(d), 360-4.6(b) and 360-4.7(a) of this Subpart, except that pension funds belonging to a community spouse which are held in individual retirement accounts or in work-related pension plans, including plans for self-employed individuals such as Keogh plans, are countable resources of the community spouse for purposes of determining the institutionalized spouse's eligibility and calculating the amount of any community spouse resource allowance.

(10) Significant financial distress means exceptional expenses which the community spouse cannot be expected to meet from the monthly maintenance needs allowance or from amounts held in resources. Such expenses may be of a recurring nature or may represent major one time costs, and may include but are not limited to: recurring or extraordinary noncovered medical expenses; amounts to preserve, maintain or make major repairs on the homestead; and amounts necessary to preserve an income-producing asset.

(11) Spousal share means an amount equal to one-half of the total value of the countable resources of the community spouse and the institutionalized spouse, as of the beginning of the first continuous period of institutionalization beginning on or after September 30, 1989, 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.

(12) Undue hardship means a situation where:

(i) a community spouse fails to refuses to cooperate in providing necessary information about his/her resources;

(ii) the institutionalized spouse is otherwise eligible for MA;

(iii) the institutionalized spouse is unable to obtain appropriate medical care without the provision of MA; and

(iv)

(iv)

(a) the community spouse's whereabouts are unknown; or

(b) the community spouse is incapable of providing the required information due to illness or mental incapacity; or

(c) the community spouse lived apart from the institutionalized spouse immediately prior to institutionalization; or

(d) due to the action or inaction of the community spouse, other than the failure or refusal to cooperate in providing necessary information about his/her resources, the institutionalized spouse will be in need of protection from actual or threatened harm, neglect, or hazardous conditions if discharged from an appropriate medical setting.

(b) Treatment of income.

(1) At any time after the commencement of a continuous period of institutionalization, an assessment of the amount of the community spouse monthly income allowance and/or family allowance may be requested in accordance with subdivision (c) of this section.

(2) Unless rebutted by a preponderance of the evidence, for purposes of determining MA eligibility the following presumptions will apply with respect to the availability of income to an institutionalized spouse:

(i) No income of the community spouse shall be considered available to the institutionalized spouse except as provided for in this section.

(ii) Income solely in the name of the institutionalized spouse or the community spouse shall be considered available only to that respective spouse.

(iii) Income in the names of the institutionalized spouse and the community spouse shall be considered available one half to each spouse.

(iv) 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.

(v) Income from a trust shall be considered available to each spouse in accordance with the provisions of the trust instrument, or, in the absence of a specific trust provision allocating income, in accordance with the provisions of subparagraphs (ii) through (iv) of this paragraph.

(vi) Income in which there is no instrument establishing ownership shall will be considered to be available one-half to each spouse.

(3) The eligibility of an institutionalized spouse for MA for the first month or partial month of institutionalization will be determined by comparing his/her net available income, computed in accordance with section 360-4.6(a)(1) and (2) of this Part, and any income actually contributed by the community spouse, to the appropriate MA or PA income standard for one person. Thereafter, the institutionalized spouse's eligibility for MA and liability for the cost of care will be determined in accordance with this section and with sections 360- 1.4(c) and 360-4.9 of this Part until the month following the month in which he/she ceases to be an institutionalized spouse.

(4) In determining the amount of the institutionalized spouse's income to be applied toward the cost of medical care, services and supplies, the following items will be deducted from the otherwise available monthly income of the institutionalized spouse in the following order:

(i) a personal needs allowance;

(ii) a community spouse monthly income allowance, but only to the extent that the income is made available to or for the benefit of the community spouse;

(iii) a family allowance for each family member; and

(iv) any expenses incurred for medical care, services or supplies and remedial care for the institutionalized spouse not subject to payment under this Title or by a third party.

(5) The community spouse will be requested to contribute 25 percent of his/her income in excess of the minimum monthly maintenance needs allowance and any family allowances toward the cost of necessary care or assistance for the institutionalized spouse. An institutionalized spouse will not be denied MA because the community spouse refuses or fails to make such income available. However, nothing contained in this paragraph prohibits a social services district from enforcing the provisions of the Social Services Law which require financial contributions from legally responsible relatives, or recovering from the community spouse the cost of any MA provided to the institutionalized spouse.

(6) 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 in paragraph (a)(9) of this section, the department must substitute an amount adequate to provide additional necessary income from the income otherwise available to the institutionalized spouse.

(c) Treatment of resources. The following rules apply in determining the resources available to the institutionalized spouse and the community spouse when establishing eligibility for MA for the institutionalized spouse.

(1) At any time after the commencement of a continuous period of institutionalization, either spouse may request an assessment of the total value of their resources, or may request to be notified of the amounts of the community spouse monthly allowance, the community spouse resource allowance, and the family allowance, and/or the method of computing such amounts.

(i) Assessment. Upon receipt of a request for assessment, together with all relevant documentation of the resources of both spouses, the social services district must assess and document within 30 days 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 MA application, the social services district may charge a fee not exceeding $25 for the assessment which is related to the cost of preparing and copying the assessment and documentation.

(ii) Determination of allowances. At the request of either spouse, the social services district must notify the requesting spouse of the amounts of the community spouse monthly income allowance, the community spouse resource allowance, and the family allowance, and/or the method of computing such amounts.

(iii) Notice of right to a fair hearing. At the time of an assessment or a determination of allowances pursuant to this paragraph, the social services district must provide to each spouse who received a copy of such assessment or determination a notice of the right to a fair hearing under section 358-3.1(g) of this Title. If the assessment or determination is made in connection with an application for MA, the fair hearing notice must be sent to both spouses at the time of eligibility determination is made. Section 358-3.1(g) of this Title provides a fair hearing right to an institutionalized spouse or community spouses, after a determination has been made on the institutionalized spouses's MA application, if the spouse is dissatisfied with the determination of the community spouse monthly income allowance, the amount of monthly income determined to be otherwise available to the community spouse, the amount of resources attributed to the community spouse or to the institutionalized spouse, or the determination of the community spouse resource allowance.

(2) At the time of application of the institutionalized spouse for MA, all resources, including resources required to be considered in determining eligibility pursuant to section 360-4.4 of this Subpart, held by either the institutionalized spouse or the community spouse, or both, will be considered available to the institutionalized spouse to the extent that the value of the resources exceeds the maximum community spouse resource allowance.

(3) In the event that a community spouse fails or refuses to cooperate in providing necessary information about his/her resources, such refusal will be a reason for denying MA for the institutionalized spouse because MA eligibility cannot be determined. However, an institutionalized spouse will not be determined ineligible for MA in this situation if; the institutionalized spouse executes an assignment of his/her right to pursue support from the community spouse in favor of the social services district and the department, or is unable to execute such an assignment due to physical or mental impairment; and to deny assistance would be an undue hardship, as defined in subdivision (a) of this section.

(4) If necessary information about the resources of the community spouse is provided, but the community spouse fails or refuses to make available his/her resources in excess of the maximum community spouse resource allowance, the institutionalized spouse will be eligible for MA only if; the institutionalized spouse is otherwise eligible; and the institutionalized spouse executes an assignment of his/her right to pursue support from the community spouse in favor of the social services district and the department, or the institutionalized spouse is unable to execute such an assignment due to physical or mental impairment. However, nothing contained in this paragraph prohibits a social services district from enforcing the provisions of the Social Services Law which require financial contributions from legally responsible relatives, or recovering from the community spouse the cost of any MA provided to the institutionalized spouse.

(5) After the month in which the institutionalized spouse has been determined eligible for MA during a continuous period of institutionalization, no resource of the community spouse will be considered available to the institutionalized spouse.

(6) Notwithstanding section 360-4.4 of this Subpart, after an institutionalized spouse is determined eligible for MA, transfers of resources by the institutionalized spouse to the community spouse will 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 within 90 days of the eligibility determination or within such longer period as determined by the social services district in individual cases. Such resources must actually be made available to meet the needs of the community spouse in order to be excluded when determining the continuing eligibility of the institutionalized spouse.

(7) 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 must establish resource allowance adequate to provide such minimum monthly maintenance needs allowance from those resources considered to be available to the institutionalized spouse.

N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-4.10