N.Y. Comp. Codes R. & Regs. tit. 18 § 485.12

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

Section 485.12 - Personal allowances for Supplemental Security Income or Home Relief recipients

(a) Each resident of an adult care facility who is receiving Supplemental Security Income or Home Relief benefits and who is entitled to a monthly personal allowance by Social Services Law, section 131-o, or section 352.8(c) of this Title, shall be afforded the following protections:

(1) Each resident must receive a personal allowance equal to the amount stipulated in subdivision (b) of this section or section 352.8(c) of this Title.

(2) Any waiver of the right of an SSI or HR recipient to a personal allowance shall be void.

(3) The personal allowance may be used at the discretion of the resident for personal needs not provided by the operator pursuant to the law and regulations.

(4) The operator shall not demand, require or contract for payment of any part of the personal allowance or any income disregarded by the Social Security Administration in determining eligibility for Supplemental Security Income, in satisfaction of the basic facility rate for supplies and services or for any services or supplies, unless the resident elects to purchase such services or supplies and the department has determined that such services or supplies are not otherwise required to be provided by the operator pursuant to law, regulation or agreement, and the charges for such services or supplies are reasonable.

(5) Any individual who has not received or been able to control his/her personal allowance to the extent and in the manner required by section 131-o of the Social Services Law may maintain an action in his own behalf for recovery of any such funds and, upon a showing that the funds were intentionally withheld or misappropriated to other than the intended use, for recovery of additional punitive damages in an amount equal to twice the amount misappropriated or withheld.

(6) The department shall investigate any suspected misappropriation or withholding of personal allowance funds, and may maintain an action on behalf of any individual or group of individuals to recover any funds so misappropriated or withheld, including any punitive damages.

(7) In any case where the operator is suspected of misappropriating a resident' personal allowance, the department or its designee shall investigate and, where appropriate, take the steps necessary to insure recovery of resident funds, including referral for prosecution. Funds recovered in this manner shall be given to the respective resident or credited to his/her personal allowance account at the earliest possible date.

(8) Any person who intentionally withholds, commingles, borrows or pledges the personal allowance of an SSI recipient, or who demands, beneficially receives or contracts for payment of all or any part of the personal allowance in satisfaction of the facility rate for supplies and services, shall be guilty of a class A misdemeanor.

(b) Effective January 1, 1987, each resident receiving Supplemental Security Income benefits in an adult care facility as defined in Social Services Law, section 209, or Home Relief benefits as set forth in section 352.8(c) of this Title, is entitled to a monthly personal allowance out of such benefits in the following minimum amounts:

(1) In adult care facilities certified for level II Supplemental Security Income payments:

(i) Residents receiving total Supplemental Security Income benefits of $90 per month or less must have personal allowances consisting of their total Supplemental Security Income benefit amount in addition to any income disregarded by the Social Security Administration in determining the recipient' eligibility for Supplemental Security Income, except third-party payments from non-public sources treated as in-kind income.

(ii) Residents receiving Supplemental Security Income benefits greater than $90 per month, and having no other income, must have personal allowances of at least $90 per month.

(iii) Residents receiving Supplemental Security Income benefits greater than $90 per month, with other sources of income, must have personal allowances of at least $90 per month in addition to any income disregarded by the Social Security Administration, except third-party payments from non-public sources treated as in-kind income.

(iv) Residents receiving Supplemental Security Income who were "grandparented" from the Aid to the Aged, Blind and Disabled program (AABD), whose benefit amounts are above the standard Supplemental Security Income benefit levels, must have personal allowances of at least $90 per month in addition to any income disregarded by the Social Security Administration as described in subparagraph (i) of this paragraph.

(2) In adult care facilities certified for level I Supplemental Security Income payments:

(i) Residents receiving total Supplemental Security Income benefits less than $80 per month must have personal allowances consisting of their total Supplemental Security Income benefit amount in addition to any income disregarded by the Social Security Administration as described in subparagraph (1)(i) of this subdivision.

(ii) Residents receiving Supplemental Security Income benefits greater than $80 per month, and having no other income, must have personal allowances of at least $80 per month.

(iii) Residents receiving Supplemental Security Income benefits greater than $80 per month, with other sources of income, must have personal allowances of at least $80 per month in addition to any income disregarded by the Social Security Administration as described in subparagraph (1)(i) of this subdivision.

(iv) Residents who are "grandparented" from the Aid to the Aged, Blind and Disabled program (AABD), whose benefit amounts are above the standard Supplemental Security Income benefit levels, must have personal allowances of at least $80 per month in addition to any income disregarded by the Social Security Administration as described in subparagraph (1)(i) of this subdivision.

(3) In any month in which a resident receives a prorated SSI or HR benefit, the resident shall also be entitled to an identically prorated personal allowance.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 485.12

Amended New York State Register December 11, 2019/Volume XLI, Issue 50, eff. 1/1/2020