SubPart 360-4 - FINANCIAL ELIGIBILITY

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Section 360-4.1 - Introduction.

Section 360-4.1 Introduction. (a) To be eligible for MA under section 360-3.3(b) of this Part as a medically needy person, or to have MA eligibility extended under some provisions of section 360-3.3(c) of this Part, a person must meet certain financial requirements. A person who meets these requirements is financially eligible for MA. This Subpart explains procedures and principles used to determine financial eligibility.

(b) How the process works. (1) Except as provided in paragraph (2) of this subdivision, financial eligibility will be determined as follows:

(i) The size of the applicant's/recipient's MA household will be determined.

(ii) All income and resources available to the applicant/recipient during the period for which eligibility is being determined will be identified.

(iii) Certain amounts and types of income and resources will be disregarded. The remainder is the applicant's/recipient's net available income and resources.

(iv) The applicant's/recipient's net available income and resources will be compared to the eligibility standards for his/her MA household size. The applicant/recipient is financially eligible if the amounts of his/her net available income and resources do not exceed the appropriate standards. A financially eligible applicant who also meets all other eligibility requirements will be eligible to receive MA.

(v) An applicant whose net available resources are above the resource standards will be ineligible for MA until he/she incurs medical expenses equal to or greater than the excess resources.

(vi) Generally, an applicant whose net available income is above the income standard for his/her MA household size will be ineligible for MA until he/she incurs medical expenses equal to or greater than the excess income.

(2) For a pregnant woman, an infant younger than one year of age, a child at least one year of age but younger than six years of age whose household income does not exceed 133 percent of the applicable Federal poverty line set forth in section 360-4.7(b) of this Subpart, or a child born after September 30, 1983 who is at least six years of age but younger than 19 years of age and whose household income does not exceed 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart, financial eligibility will be determined as follows:

(i) The size of the applicant's/recipient's MA household will be determined.

(ii) All income available to the applicant/recipient during the period for which eligibility is being determined will be identified. All resources available to the applicant's/recipient's MA household are exempt from consideration.

(iii) Certain amounts and types of income will be disregarded in accordance with the provisions of section 360-4.6 of this Subpart. The remainder is the applicant's/recipient's net available income.

(iv) The applicant's/recipient's net available income will be compared to the eligibility standards or poverty lines for his/her MA household size. The applicant/recipient is financially eligible if the amounts of his/her net available income do not exceed the applicable eligibility standards or poverty lines. A financially eligible applicant who also meets all other eligibility requirements will be eligible to receive MA.

(c) This Subpart does not set forth the procedure for calculating the HR eligibility of persons whose MA eligibility depends on their being eligible for HR. As more fully explained in section 360-2.2(d)(2) of this Part, the HR eligibility of such persons generally will be determined according to Parts 352 and 370 of this Title.

 

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Section 360-4.2 - Size of MA household.

360-4.2 Size of MA household. (a) For needy individuals under 21, pregnant women, persons ineligible for ADC solely because their incomes and resources exceed ADC eligibility standards, and parents described in section 360-3.3(b) of this Part, an MA household is all MA applicants/recipients who live together in a single dwelling who apply for or receive MA as a unit, and any legally responsible relative who does not receive HR, ADC, or SSI and resides with an applicant/recipient. Any person who receives HR, ADC, or SSI will not be included as a member of an MA household, and the income and resources of such a person will not be considered when social services districts determine the MA eligibility of the applicant(s)/recipient(s).

(b) For adults who are aged, certified blind or certified disabled, an MA household is the aged, blind or disabled person and his or her spouse who lives with him or her if the spouse is: (i) also aged, certified blind or certified disabled, or (ii) has remaining income after allocation which is equal to or greater than the difference between the medically needy income standard for one, and the medically needy income standard for two. For other aged, certified blind or certified disabled adults who live with their spouses, an MA household consists of one person for income purposes, but consists of two persons for resource purposes. For all other aged, certified disabled, or certified blind applicant(s)/recipient(s), an MA household consists of one person.

(c) Special rules. (1) An MA household which contains a pregnant woman will be increased by one if the pregnancy is medically verified, except for applicant(s)/recipient(s) whose eligibility is being determined under the budgeting methodology used for aged, certified blind and certified disabled individuals. The increase will begin three months prior to the month of application or on the date of conception, whichever is later.

(2) A household member who is temporarily absent, as defined in section 360-1.4(p) of this Part, will continue to be included in the household.

 

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Section 360-4.3 - Available income.

Sec. 360-4.3 Available income. (a) Available income of an MA applicant/recipient will be determined as follows:

(1) All earned and unearned income received during the month will be considered. In determining the amount of earned and unearned income, allowable business expenses will be deducted, as described in subdivisions (c) and (d) of this section.

(2) Certain types of in-kind income will be deducted as described in subdivision (e) of this section.

(3) Income deemed available from legally responsible relatives will be added, as described in subdivision (f) of this section.

(4) Income allocated to dependent family members will be deducted. The amount remaining after the calculations in paragraphs (1) through (4) of this subdivision are made, is the applicant's/recipient's available income.

(b) Types of income. (1) Income means any payment from any source. It includes payments of money, goods, or services. It includes payments made on a one-time basis and on a recurring basis. It includes both earned and unearned income. Income received by an MA applicant/recipient is counted in the month in which it is received when determining MA eligibility. Resources, however, may be retained from month to month up to the levels exempted in section 360-4.7(a) of this Subpart.

(2) Earned income is income received as a result of working. Earned income includes, but is not limited to, wages, salaries, tips, commissions, bonuses and income from self-employment or a small business.

(3) Unearned income is income that is not received as compensation for work performed. Unearned income includes, but is not limited to, pensions, benefits, dividends, interest, and insurance compensation.

(4) In-kind income is income received in goods or services rather than in money.

In-kind income can be earned or unearned.

(c) Income from self-employment or small business. Income from a person's self-employment or from a small business owned and operated by the person, after allowable business expenses are deducted, is considered available earned income. The following allowable business expenses may generally be deducted:

(i) rental of quarters and equipment;

(2) salaries and fringe benefits of employees;

(3) cost of goods for resale;

(4) business taxes, licenses and permits;

(5) cost of tools, supplies and raw materials;

(6) insurance for the business;

(7) lights, heat, water, sewage and telephone charges;

(8) advertising and travel;

(9) taxes and carrying charges on any property used in the business

(other than payments on the principal of a mortgage);

(10) for aged, certified blind, or certified disabled applicants/recipients, depreciation costs for buildings, equipment and materials necessary for and directly related to the operation of the business; and

(11) any other expense necessary for and directly related to the operation of the business.

(d) Income from rental of property. (1) Income received from the rental of a person's real or personal property, after allowable business expenses are deducted, is considered available income of the person. For persons under 21 years of age, pregnant women, persons ineligible for ADC solely because their income and/or resources are above the amounts allowed for ADC eligibility, and parents described in section 360-3.3(b)(7) of this Part, such income will be considered earned income. For persons 65 years of age or older, certified blind, or certified disabled, such income will be considered unearned income. The following business expenses are deductible:

(i) property, school, water and sewer taxes;

(ii) the cost of utilities if they are included in the rent;

(iii) interest payments on mortgages for the property (but not payments on the principal of the mortgage);

(iv) the cost of essential repairs on the property (but not the cost of improvements to the property);

(v) wages paid to employees for maintaining the property; and

(vi) any other expenses necessary for the maintenance of the property.

(2) A person renting out a portion of his/her homestead, as defined in section 3601.4(f) of this Part, may deduct the business expenses listed in paragraph (1) of this subdivision to the extent that they are attributable to the rented portion of the property.

(3) When a person lives in income-producing property that is not a homestead, a reasonable rental allowance for the portion occupied by the person must be added to the total rental income before deducting allowable business expenses.

(e) In-kind income. (1) Earned or unearned in-kind income received from legally responsible relatives living outside the MA household is considered available income pursuant to subdivision (f) of this section. In-kind income received from anyone other than a legally responsible relative is considered available income only if it is earned income. Gifts and one-time contributions are not considered available income, regardless of the source; however, they can be counted against the resource standard.

(2) The value of in-kind income will be determined based on the current market value of the goods or services received. The current market value is the amount that would be received if the goods or services were sold on the open market in the applicant's/recipient's local area. However, the value of housing provided as in-kind income will be the current market value of the housing or the social services district's maximum shelter allowance, whichever is less.

(f) Legally responsible relatives. (1) This paragraph explains when the income and resources of a legally responsible relative is considered available to an MA applicant/recipient. Legally responsible relative is defined in section 360-1.4(h).

(i) Legally responsible relative living with an MA applicant/recipient who is not an institutionalized spouse as defined in section 360-4.10 of this Subpart. A portion of the legally responsible relative's income and resources, if he/she is of sufficient financial ability, will be considered available to the MA applicant/recipient. With respect to MA applicants/recipients who are 65 years of age or older, certified blind, or certified disabled, the amount of a legally responsible relative's income, if any, to be deemed available to the applicant/recipient will be determined in accordance with federal supplemental security income program regulations providing for the allocation of an amount of such relative's income to meet the needs of certain family members living with the applicant/recipient. The applicant/recipient will not be denied MA if the legally responsible relative refuses or fails to contribute toward the applicant's/recipient's medical support. However, the furnishing of MA will create an implied contract with the legally responsible relative and the cost of any MA provided may be recovered from such relative by the social services district pursuant to sections 101 and 366(3) (a) of the Social Services Law.

(ii) Legally responsible relative living apart from a non-institutionalized MA applicant/recipient. The legally responsible relative, if of sufficient financial ability, will be asked to contribute a portion of his/her income and resources to the MA applicant/recipient. Regardless of the amount of any requested contribution, only the amount that the legally responsible relative actually contributes to the non-institutionalized MA applicant/recipient will be considered available when determining MA eligibility. However, the social services district may seek to recover the cost of any MA provided from the legally responsible relative pursuant to sections 101 and 366 (3) (a) of the Social Services Law.

(iii) Spouses living apart due to institutionalization of one spouse. The ability of the community spouse to contribute income to the institutionalized spouse's cost of care will be determined in accordance with section 360-4.10(b) of this Subpart. The availability of the community spouse's resources will be determined in accordance with section 360-4.10(c) of this Subpart.

(iv) Parents of a child under the age of 21 who is certified blind or certified disabled and who is expected to be living separately from the parental household for 30 days or more, will not be requested to make their income and resources available to meet the cost of the child's necessary care or assistance.

(2) (i) The social services district must request a legally responsible relative, other than a community spouse as defined in section 360-4.10 of this Subpart, to contribute any excess resources toward the support of the MA applicant/recipient.

(ii) In determining the amount of contribution to be requested, legally responsible relatives who are not aged, certified blind, or certified disabled will be allowed the resource disregard in section 360-4.6 (b)

(1) of this Subpart and the standard resource exemptions listed in section 360-4.7(a) of this Subpart. Legally responsible relatives who are aged, certified blind, or certified disabled will be allowed the resource disregards in section 360-4.6(b) of this Subpart and the standard resource exemptions listed in section 360-4.7(a) of this Subpart.

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Section 360-4.4 - Available resources.

360-4.4 Available resources. (a)Resources means property of all kinds, including real and personal property. It includes both tangible and intangible property.

(b) An applicant's/recipient's available resources include:

(1) all resources in the control of the applicant/recipient. It also includes any resources in the control of anyone acting on the applicant's/recipient's behalf such as a guardian, conservator, representative, or committee;

(2) certain resources transferred for less than fair market value, as explained in subdivision (c) of this section;

(3) all or part of the equity value of certain income-producing property, as explained in subdivision (d) of this section;

(4) certain resources of legally responsible relatives, as explained in subdivision 360-4.3(f) of this Subpart; and

(5) certain resources of an MA-qualifying trust, as explained in subdivision 360-4.5 of this Subpart.

(c) Transfer of assets.

(1) Transfers made by an applicant/recipient on or after October 1, 1989 and prior to September 1, 1991; and transfers made by an applicant/recipient or his/her spouse on or after September 1, 1991.

(i) General rule. Any transfer of a resource for less than fair market value made within or after the 30-month period immediately preceding the date a person becomes an institutionalized person, or the date an institutionalized person applies for MA, whichever is later, shall be presumed to have been made for the purpose of qualifying for nursing care and related services in a nursing facility; a level of care provided in a hospital which is equivalent to the level of care provided in a nursing facility; or care, services, or supplies furnished pursuant to a waiver under section 1915(c) of the Federal Social Security Act. Such a transfer shall result in a period of ineligibility for these services, as explained in subparagraph (iii) of this paragraph. For purposes of this paragraph, an institutionalized person means an inpatient in a nursing facility, an inpatient in a medical facility who is receiving a level of care provided in a nursing facility, or a person receiving care, services, or supplies pursuant to a waiver under section 1915 (c) of the Federal Social Security Act.

(ii) Exceptions. A person will not be ineligible for MA as a result of a transfer described in subparagraph (i) of this paragraph if:

(a) the resource transferred was a disregarded or exempt resource under sections 360-4.4(d), 360-4.6(b), and 360-4.7(a)(2)-(4) of this Subpart;

(b) the resource transferred was a homestead, as defined in subdivision 360-1.4(f) of this Part, and title to the homestead was transferred to:

(1) the spouse of such person; or

(2) a child of such person who is certified blind, certified permanently and totally disabled or under the age of 21; or

(3) a sibling of such person who has an equity interest in such home and who was residing in such home for a period of at least one year immediately before the date the period becomes institutionalized; or

(4) a son or daughter of such person who was residing in such home for a period of at least two years immediately before the date the person becomes institutionalized, and who provided care to such person which permitted such person to reside at home rather than in an institution or facility; or

(c)(1) the resource was transferred by the applicant/recipient on or after October 1, 1989 and prior to September 1, 1991, and the transfer was:

(i) to or for the sole benefit of the community spouse, as defined in subdivision 360-4.10(a) of this Subpart; or

(ii) to the applicant's/recipient's child who is certified blind or certified permanently and totally disabled; or

(iii) to or for the sole benefit of the applicant's/recipient's spouse (other than a community spouse), provided such spouse does not transfer such resource to another person other than the applicant/recipient for less than fair market value within the period provided for by subparagraph (iii) hereof; or

(2) the resource was transferred by the applicant/recipient or his/her spouse on or after September 1, 1991, and the transfer was:

(i) between spouses or to another for the sole benefit of the person's spouse; or

(ii) to the person's child who is certified blind or certified permanently and totally disabled; or

(d) (1) a satisfactory showing is made that:

(i) the person or the person's spouse intended to dispose of the resource either at fair market value, or for other valuable consideration; or

(ii) the resource was transferred exclusively for a purpose other than to qualify: for nursing care and related services in a nursing facility; a level of care provided in a hospital which is equivalent to the level of care provided in a nursing facility; or care, services, or supplies furnished pursuant to a waiver under section 1915(c) of the Federal Social Security Act; or

(2) in the absence of a satisfactory showing under subclause (1) of this clause, it is determined that the denial of eligibility will result in an undue hardship. Denial of eligibility will result in an undue hardship if:

(i) the institutionalized person is otherwise eligible for MA;

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

(iii) despite his/her best efforts, the institutionalized person or the person's spouse is unable to have the transferred resource returned or to receive fair market value for the resource. Best efforts include cooperating, as deemed appropriate by the commissioner of the social services district, in the pursuit of the return of such resource.

(iii) Period of ineligibility. (a) Any transfer made under this paragraph will cause the applicant/recipient to be ineligible for: nursing facility services; for a level of care equivalent to that of nursing facility services provided in a hospital; and for care, services, or supplies provided pursuant to a waiver under section 1915(c) of the Federal Social Security Act. Such person will remain ineligible for such services for the lesser of:

(1) 30 months from the date of transfer; or

(2) a period equal to the uncompensated value of the transferred resources divided by the average cost of care to a private patient for skilled nursing facility services in the region in which such person is institutionalized, on the date the person first applies or recertifies for MA as an institutionalized person.

(b) For purposes of this subparagraph:

(1) uncompensated value is the fair market value of the resource at the time it was transferred, less any compensation received for the resource; and

(2) the cost of care to a private patient in the region in which the person is institutionalized will be presumed to be 120 percent of the average MA rate for skilled nursing facility care for the facilities within the region. The average regional rate will be updated each January 1st by the department. Regions shall be the same as those established by section 2807-c of the Public Health Law.

(c) Notwithstanding the provisions of clause (a) of this subparagraph, multiple transfers of resources within a 30-month period will be considered to be a single transfer of the total amount of such resources, and the period of ineligibility required by clause (a) will run from the date of the first transfer, to the extent that:

(1) the resources were available at the time of the first transfer and could have been transferred all at once; and

(2) treating the transfers as separate would result in concurrent periods of ineligibility, and in a shorter total period of ineligibility than if the transfers are considered to be a single transfer.

(2) Transfers made by an applicant/recipient or his/her spouse on or after August 11, 1993. (i) Definitions.

(a) Assets include all income and resources of the individual and of the individual's spouse, including income or resources to which the individual or the individual's spouse is entitled but does not receive because of any action or inaction by:

(1) the individual or the individual's spouse;

(2) a person with legal authority to act in place of or on behalf of the individual or the individual's spouse;

(3) a person acting at the direction of or upon the behalf of the individual or the individual's spouse; or

(4) a court or administrative body with legal authority to act in place of or on behalf of the individual or the individual's spouse or at the direction or upon the request of the individual or the individual's spouse.

(b) Institutionalized individual means an in-patient in a nursing facility (including an intermediate care facility for the mentally retarded), an in-patient in a medical facility who is receiving a level of care provided in a nursing facility, or an individual receiving care, services, or supplies pursuant to a waiver under section 1915(c) of the federal Social Security Act.

(c) Look-back period means the 36-month period, or, in the case of payments to or from a trust which are considered to be assets transferred by an applicant/recipient pursuant to subdivision (b) of section 360-4.5 of this Subpart, the 60-month period, immediately preceding the date that an institutionalized individual is both institutionalized and has applied for MA.

(d) Nursing facility means a nursing home as defined by section 2801 of the Public Health Law or an intermediate care facility for the mentally retarded.

(e) Nursing facility services means nursing care and health related services provided in a nursing facility, a level of care provided in a hospital which is equivalent to the level of care provided in a nursing facility, and care, services, or supplies furnished pursuant to a waiver under section 1915(c) of the federal Social Security Act.

(f) Uncompensated value of a transferred asset means the fair market value of the asset at the time it was transferred, less any compensation received in exchange for the asset.

(ii) General rule. In determining the MA eligibility of an institutionalized individual, any transfer of assets for less than fair market value made by the individual or the individual's spouse within or after the look-back period will render the individual ineligible for nursing facility services, as explained in subparagraph (iv) of this paragraph.

(iii) Exceptions. An individual will not be ineligible for MA as a result of a transfer described in subparagraph (ii) of this paragraph if:

(a) the asset transferred was a disregarded or exempt asset under sections 360-4.4(d), 360-4.6, and 360-4.7 of this Subpart, other than a homestead; or

(b) the asset transferred was a homestead, as defined in subdivision 360-1.4(f) of this Part, and title to the homestead was transferred to:

(1) the spouse of the individual; or

(2) a child of the individual who is blind, disabled, or under the age of 21; or

(3) a sibling of the individual who has an equity interest in such homestead and who was residing in such homestead for a period of at least one year immediately before the date the individual became an institutionalized individual; or

(4) a child of such individual who was residing in such homestead for a period of at least two years immediately before the date the individual became an institutionalized individual, and who provided care, as defined in section 311.4(a)(1) of this Title, to such individual which permitted such individual to reside at home rather an than in an institution or facility; or

(c)(1) the asset was transferred:

(i) to the individual's spouse or to another for the sole benefit of the individual's spouse; or

(ii) from the individual's spouse to another for the sole benefit of the individual's spouse; or

(iii) to the individual's child who is blind or disabled, or to a trust established solely for the benefit of such child; or

(iv) to a trust established solely for the benefit of an individual under 65 years of age who is disabled.

(d)(1) a satisfactory showing is made that:

(i) the individual or the individual's spouse intended to dispose of the asset either at fair market value, or for other valuable consideration; or

(ii) the asset was transferred exclusively for a purpose other than to qualify for MA; or

(iii) all assets transferred for less than fair market value have been returned to the individual; or

(e) it is determined that the denial of eligibility will result in an undue hardship. Denial of eligibility will result in an undue hardship if:

(i) the institutionalized individual is otherwise eligible for MA;

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

(iii) despite his or her best efforts, the institutionalized individual or the individual's spouse is unable to have the transferred asset returned or to receive fair market value for the asset. Best efforts include cooperating, as deemed appropriate by the commissioner of the social services district, in efforts to seek the return of the asset.

(iv) Period of ineligibility.

(a) Any transfer made under this paragraph will cause the applicant/recipient to be ineligible for nursing facility services for a period of months equal to the total, cumulative, uncompensated value of all assets transferred during or after the look-back period divided by the average cost of care to a private patient for nursing facility services in the region in which such individual is institutionalized, on the date the individual first applies or recertifies for MA as an institutionalized individual. For purposes of this subparagraph, the cost of care to a private patient in the region in which the individual is institutionalized will be presumed to be 120 percent of the average MA rate for nursing facility care for the facilities within the region. The average regional rate will be updated each January first by the Department. The regions will be the same as those established by section 2807-c of the Public Health Law.

(b) The period of ineligibility begins with the first day of the first month during or after which assets have been transferred for less than fair market value, and which does not occur in any other period of ineligibility under this subdivision.

(v) Transfers for the sole benefit of a spouse. A transfer by an individual to another is for the sole benefit of the individual's spouse if: the terms and conditions of the transfer are specified in a written instrument of transfer (such as a trust document, deed, or other signed and acknowledged statement), which is executed at or about the time of transfer, clearly limiting the use and enjoyment of the transferred property to the individual's spouse; or there is other evidence, including evidence demonstrating a continuous course of conduct by the person to whom the assets were transferred, establishing that the use and enjoyment of the transferred property has been, and will continue to be limited to the individual's spouse. Any subsequent action by the individual's spouse, or by the person to whom the assets were transferred for the spouse's benefit, which reduces or eliminates the spouse's beneficial use of the transferred property, or the ownership or control of the person to whom the assets were transferred, may be considered a transfer of assets on the date such action is taken. The establishment of a trust for the benefit of a spouse will not be considered a transfer for the sole benefit of such spouse if: during the life of the trust, the trustee has the authority to make distributions for the benefit of anyone other than the spouse; or the trust provides that upon its termination, all or part of the remaining principal and income is to be distributed to someone other than the MA applicant/recipient, or the spouse's estate.

(vi) Jointly-owned assets. In the case of an asset held by an individual in common with another person or persons in a joint tenancy, tenancy in common, or similar arrangement, the asset or the affected portion of the asset will be considered to be transferred by such individual when any action is taken, either by such individual or by any other person, that reduces or eliminates such individual's ownership or control of such asset.

(vii) Apportioning periods of ineligibility. In the case of a transfer by the spouse of an individual which results in a period of ineligibility for the individual, if the spouse becomes eligible for MA before such period of ineligibility ends, the remaining portion of the period of ineligibility will be divided equally between the individual and the spouse so long as both remain eligible for MA.

(d) Income-producing property. Income-producing property includes but is not limited to real property, buildings, liquid business resources, motor vehicles, machinery, livestock, government permits, inventories, tools, and equipment which are used in a trade or business or which produce rents or land-use fees. Certain income-producing property is not considered an available resource for purposes of determining MA eligibility.

(1) For needy individuals under 21, persons ineligible for ADC solely because their income and resources exceed the ADC eligibility standards, and parents described in section 360-3.3(b)(7) of this Part:

(i) the total equity value of non-liquid resources which generate rental income, real property, and buildings is an available resource if the property produces an annual net return of less than six percent of its equity value. If the property produces a net return on equity of six percent or more, the amount of equity value of the property above $12,000, if any, is an available resource; and

(ii) one-quarter of the amount of liquid resources needed annually to operate a trade or business is not considered an available resource. However, if the applicant/recipient demonstrates that he or she will have to expend a higher amount of liquid resources to operate his or her trade or business in the three-month period beginning with the month of MA application, the higher amount will not be considered an available resource; and

(iii) except as provided in paragraph (3) of this subdivision, all other income-producing property is not considered an available resource for this group of MA applicants/recipients.

(2) For aged, certified blind, or certified disabled applicant's/recipient's, effective May 1, 1990:

(i) the equity value of income-producing property used in a trade or business is not considered an available resource; and

(ii) the equity value of income-producing property not used in a trade or business is considered an available resource if the property: consists of real property or other non-liquid property which generates rental income, land-use fees, or other income; and produces an annual net return of less than six percent of its equity value. If such property produces an annual net return of six percent or more, the amount of equity value of the property above $12,000, if any, is considered an available resource; and

(iii) except as provided in paragraph (3) of this subdivision, all other income-producing property is not considered an available resource for this group of MA applicants/recipients.

(3) For all medically needy MA applicants/recipients, if the equity value of real property and buildings used to produce goods or services for personal use exceeds $12,000, the value in excess of $12,000 is an available resource. All other property used to produce personal goods or services is not considered an available resource.

 

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Section 360-4.5 - Availability of assets held in trust.

360-4.5 Availability of assets held in trust.

(a) Inter vivos trusts created before August 11, 1993. In determining the initial or continuing eligibility of any person applying for or receiving MA, there must be included in the amount of income and resources considered available to such person the maximum amount of payments that may be permitted to be distributed under the terms of an MA-qualifying trust, assuming the full exercise of discretion by the trustee or trustees. For purposes of this subdivision, an MA-qualifying trust is a trust or similar legal device established by a person or by his/her spouse (the grantor or grantors) other than by will, under which the grantor may be the beneficiary of all or part of the payments from the trust and under which one or more trustees are permitted to exercise any discretion with respect to the distribution to the grantor.

(1) This section applies without regard to:

(i) whether the MA-qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for MA; or

(ii) whether the trustee actually exercises discretion with respect to the distribution of payments to the grantor.

(2) Exception. Any trust or initial trust decree established prior to April 7, 1986 solely for the benefit of a mentally retarded individual who resides in an intermediate care facility for the mentally retarded will be excluded in determining initial or continuing eligibility for MA.

(b) Inter vivos trusts created on or after August 11, 1993. For purposes of this subdivision, an individual will be considered to have created a trust if assets of the individual were used to form all or part of the principal (corpus) of the trust, the trust was established other than by will, and the trust was established by: the individual; the individual's spouse; a person acting at the direction of the individual or the individual's spouse, including a court or administrative body; or a person with the legal authority to act in place of or on behalf of the individual or the individual's spouse, including a court or administrative body. In the case of a trust which contains the assets of an individual and of another person or persons, the provisions of this subdivision apply to the portion of a trust's assets which are attributable to the individual.

(1) Irrevocable trusts created by an applicant/recipient. The availability of assets held in an irrevocable trust to an applicant/recipient depends on the trustee's authority, under the specific terms of the trust agreement, to make payments to or for the benefit of the applicant/recipient.

(i) Any portion of the trust principal, and of the income generated by the trust principal, from which no payments may be made to the applicant/recipient under any circumstances, must be considered to be assets transferred by the applicant/recipient for purposes of subdivision (c) of section 360-4.4 of this Subpart. The date of the transfer in such cases is the date the trust is established or, if later, the date on which payment to the applicant/recipient is foreclosed under the terms of the trust agreement.

(ii) Any portion of the trust principal, and of the income generated from the trust, which can be paid to or for the benefit of the applicant/recipient, under any circumstances, must be considered to be an available resource.

(iii) Payments made from the trust to or for the benefit of the applicant/recipient must be considered to be available income in the month paid.

(iv) Any payments from the trust other than those described in clause (iii) of this paragraph must be considered to be assets transferred by the applicant/recipient for purposes of subdivision (c) of section 3604.4 of this Subpart.

(2) Revocable trusts created by an applicant/recipient.

(i) The trust principal and the income generated by the trust principal must be considered as an available resource.

(ii) Payments made from the trust to or for the benefit of the applicant/recipient must be considered to be available income in the month paid.

(iii) Any payments from the trust other than those described in clause (ii) of this paragraph must be considered to be assets transferred by the applicant/recipient for purposes of subdivision (c) of section 3604.4 of this Subpart.

(3) Trusts created by the spouse of an applicant/recipient with the spouse's assets.

(i) Revocable trusts. The availability of trust assets to the spouse is governed by the provisions of paragraph (2) of this subdivision.

(ii) Irrevocable trusts. (a) The trust principal and the income generated by the trust principal must be considered to be assets transferred by the applicant/recipient for purposes of subdivision (c) of section 360-4.4 of this Subpart.

(b) Payments made from the trust to or for the benefit of the applicant/recipient must be considered to be available income in the month paid.

(4) Trusts created by anyone other than the applicant/recipient or a legally responsible relative, including trusts created pursuant to section 7-1.12 of the Estates, Powers, and Trusts Law. Payments made from the trust to the applicant/recipient are available income in the month received. Neither the principal of such a trust nor any in-kind benefits received by the applicant/recipient as a result of disbursements from the trust will be counted as or deemed to be available income or resources for purposes of determining MA eligibility.

(5) Exceptions. (i) Notwithstanding the provisions of paragraphs (1)(4) of this subdivision, the principal and income of the following trusts must not be considered as available income or resources:

(a) A trust containing the assets of a disabled individual if: the trust was created for the benefit of the disabled individual when the disabled individual was under the age of 65; the trust was established by a parent, grandparent, legal guardian, or court of competent jurisdiction; and the trust agreement provides that upon the death of the individual the State must receive all amounts remaining in the trust up to the total value of all MA paid on behalf of the individual.

(b) A trust containing the assets of a disabled individual if: the trust is established and managed by a non-profit association which maintains separate accounts for the benefit of disabled individuals, but for purposes of investment and management of trust funds, pools the accounts; each account in the trust is established solely for the benefit of a disabled individual by the individual, by the parent, grandparent, or legal guardian of the individual, or by a court of competent jurisdiction; and upon the individual's death amounts remaining in the individual's account which are not retained by the trust must be paid to the State up to the total value of all MA paid on behalf of the individual.

(ii) In the event that a lien has been imposed pursuant to the provisions of section 104-b or section 369 of the Social Services Law upon the funds which are to be used to establish a trust described in subparagraph (i) of this paragraph, on account of MA provided prior to the date the trust is to be established, such lien must be satisfied or otherwise resolved in order for the assets subject to such lien to be disregarded in determining MA eligibility.

(iii) A trustee of a trust described in subparagraph (i) of this paragraph, in order to fulfill his or her fiduciary obligations with respect to the State's remainder interest in the trust, must:

(a) notify the appropriate social services district of the creation or funding of the trust for the benefit of an MA applicant/recipient;

(b) notify the social services district of the death of the beneficiary of the trust;

(c) notify the social services district in advance of any transactions tending to substantially deplete the principal of the trust, in the case of a trust valued at more than 100,000 dollars; for purposes of this clause, the trustee must notify the district of disbursements from the trust in excess of the following percentage of the trust principal and accumulated income: five percent for trusts over 100,000 up to 500,000 dollars; ten percent for trust valued over 500,000 up to 1,000,000 dollars; and fifteen percent for trusts over 1,000,000 dollars;

(d) notify the social services district in advance of any transactions involving transfers from the trust principal for less than fair market value; and

(e) provide the social services district with proof of bonding if the assets of the trust at any time equal or exceed 1,000,000 dollars, unless that requirement has been waived by a court of competent jurisdiction, and provide proof of bonding if the assets of the trust are less than 1,000,000 dollars, if required by a court of competent jurisdiction;

(iv) A social services district or the department may commence a proceeding under section 63 of the Executive Law against the trustee of a trust described in subparagraph (i) of this paragraph, if the district or the department considers any acts, omissions, or failures of the trustee to be inconsistent with the terms of the trust, contrary to applicable laws or regulations (including but not limited to this paragraph), or contrary to the fiduciary obligations of the trustee.

(c) Trusts created by will. Payments made from the trust to the applicant or recipient are available income in the month received. Neither the principal of such a trust nor any in-kind benefits received by the applicant or recipient as a result of disbursements from the trust will be counted as or deemed to be available income or resources for purposes of determining MA eligibility.

(d) Any provision of a trust created on or after April 2, 1992 is void if it directly or indirectly limits, suspends, terminates, or diverts the principal, income, or beneficial interest of the grantor or grantor's spouse in the event that the grantor or grantor's spouse applies for MA or requires medical care, without regard to the irrevocability of the trust or the purpose for which the trust was created. The beneficial interest of the grantor or grantor's spouse includes any income or principal amounts to which the grantor or grantor's spouse would be entitled under the terms of the trust, by right or in the discretion of the trustee, assuming the full exercise of discretion by the trustee.

(e) The provisions of subdivision (b) of this section, with respect to trusts created on or after August 11, 1993, also apply to legal instruments and other devices similar to trusts created on or after August 11, 1993. A legal instrument or other device is similar to a trust if, attendant upon its creation, assets are put under the control of an individual or entity with fiduciary obligations to manage such assets for the benefit of a designated beneficiary or beneficiaries. Legal instruments and devices subject to the provisions of subdivision (b) of this section include, but are not limited to, escrow accounts, investment accounts, and pension funds.

 

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Section 360-4.6 - Net available income and resources.

Sec. 360-4.6 Net available income and resources. Not all of the income and resources available to an applicant/recipient is counted in determining his/her financial eligibility for MA. Certain types and amounts of income and resources are disregarded. After these disregards have been applied, what remains is the applicant's/recipient's net available income and resources. This section lists the types and amounts of income and resource disregards.

(a) Income disregards. (1) Disregards applicable to all MA applicants/recipients:

(i) any payment received under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;

(ii) any loan made to a family under Title III of the Federal Economic Opportunity Act;

(iii) Federal energy assistance payments;

(iv) payments received by foster parents for care of foster children;

(v) the value of garden produce or livestock when used solely by the applicant/recipient and dependents;

(vi) the value of free school lunches;

(vii) the value of other free meals, except when more than one meal per day is furnished or when the applicant/recipient receives an allowance for meals away from home;

(viii) the value of food stamp coupons;

(ix) the value of federally donated foods;

(x) the value of WIC benefits;

(xi) payments made to participants in the Retired Senior Volunteer Program under the Domestic Volunteer Services Act for services provided to adults who have exceptional needs;

(xii) payments made to participants in the Foster Grandparent Program under the Domestic Volunteer Services Act;

(xiii) payments made to compensate for expenses incident to employment under subparagraph (xi) or (xii) of this paragraph;

(xiv) payments made to volunteers under the VISTA program;

(xv) any funds received by an applicant/recipient from the department of Housing and Urban Development community development block grants;

(xvi) any support and maintenance provided based on need according to section 352.22(s) of this Title;

(xvii) income from roomers/boarders. The first $90 per month of any income received from a person living in the home who is not a member of the family household. If the family can document out-of-pocket expenses greater than $90 per month incurred in providing room and board, these documented expenses will be disregarded;

(xviii) any portion of a grant, scholarship or fellowship used for tuition, fees, or other necessary educational expenses (excluding general living expenses);

(xix) regular cash assistance payments based on need and furnished as supplemental income by the Federal government, a state or political subdivision;

(xx) payments provided as a preventative housing service under subdivision 423.4(1) of this Title;

(xxi) benefits paid to eligible Japanese-Americans or Aleuts under the federal Civil Liberties Act of 1988 and the Aleutian and Pribilof Islands Restitution Act;

(xxii) payments made from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In re Agent Orange product liability litigation, and payments received from court proceedings brought for personal injuries sustained by veterans resulting from exposure to dioxin or phenoxy herbicides in connection with the war in Indochina in the period of January 1, 1962 through May 7, 1975;

(xxiii) refunds or advance payments of the Federal Earned Income Tax Credit; and

(xxiv) payments made for child care services, or the value of any child care services provided to a recipient of employment-related and JOBS-related child care services, transitional child care services, at-risk low income child care services or child care and development block grant services;

(xxv) bona fide loans, as described in section 352.22 of this Title;

(xxvi) any federal major disaster and emergency assistance provided under the Disaster Relief Act of 1974 (P.L. 93-288), as amended by the Disaster Relief and Emergency Assistance Amendments of 1988 (P.L. 100-707), and any comparable disaster assistance provided by states, local governments, and disaster assistance organizations;

(xxvii) distributions to Native Americans of funds appropriated in satisfaction of judgments of the Indian Claims Commission or the United States Court of Federal Claims;

(xxviii) up to $2,000 per year of income from interests of individual Native Americans in trust or restricted lands, from funds appropriated in satisfaction of Indian Claims Commission or United States Court of Federal Claims; and

(2) Additional disregards applicable to MA applicants/recipients who are 65 years of age or older, certified blind or certified disabled. These disregards are to be applied in the following order:

(i) Reserved;

(ii) all reparations payments received from the Federal Republic of Germany;

(iii) the first $20 per month of any unearned income. Only one $20 disregard is permitted per couple. A certified blind or certified disabled child living with parents is entitled to a separate $20 disregard from his/her total unearned income. If a person's unearned income is under $20, the balance will be deducted from earned income;

(iv) the first $65 of earned income;

(v) for disabled MA applicants/recipients, nonmedical, impairment-related work expenses;

(vi) one half of the remaining earned income after the disregards listed in subparagraphs (ii)-(v) of this paragraph have been applied;

(vii) health insurance premiums;

(viii) aid and attendance benefits and housebound benefits received from the Veterans' Administration;

(ix) any refund received from a public agency of taxes paid on real estate or food purchases;

(x) infrequently or irregularly received income up to $20 of unearned income per month and $10 of earned income per month;

(xi) for persons who are certified blind, all remaining reasonable work-related expenses, after the disregards set forth in subparagraphs

(i) -(xi) of this paragraph are applied;

(xii) one third of any support payments received by a certified blind or certified disabled child from an absent parent;

(xiii) any payments made under the Federal Vocational Rehabilitation Act;

(xiv) income, up to $1,200 per calendar quarter but not more than $1,620 per calendar year, earned by a child under 22 years of age who is regularly attending a school, college, university, or a course of vocational or technical training;

(xvi) home energy assistance payments which are based on financial need;

(xvii) interest earned on excluded burial funds and appreciation in the value of an excluded burial arrangement which are to become part of the separately identifiable burial fund;

(xviii) any assistance to an individual (other than wages or salaries) under the Federal Older Americans Act of 1965;

(xix) retroactive benefits under the SSI program; and

(xix) retroactive benefits under the SSI program;

(xx) payments received from a fund established by a state to aid victims of crime;

(xxi) relocation assistance received on or after May 1, 1991 that is provided by a state or local government and is comparable to assistance provided under title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 which is subject to the treatment required by section 216 of such Act;

(xxii) payments made by the Austrian government under paragraphs 500 to 506 of the Austrian General Social Insurance Act provided that the payments remain identifiable as such;

(xxiii) income received from hostile fire pay (pursuant to section 310 of title 37, United States Code) received while in active military service; and

(xxiv) for certified blind or certified disabled persons under 65 years of age, and for certified blind or certified disabled persons age 65 or over who received SSI payments or aid under the State Plan for the certified blind or certified disabled for the month preceding the month of their 65th birthday, any remaining countable income may be set aside for a plan to achieve self-support. The plan must:

(a) be current, in writing and approved by the local commissioner of social services for not more than 18 months, with the possibility of an extension for an additional 18 months. A second extension for an additional 12 months may be allowed in order to fulfill a lengthy educational or training program;

(b) specify planned savings and/or expenditures to achieve a designated feasible occupational objective and a specific period of time to achieve the objective;

(c) provide for the identification and segregation of money and goods, if any, being accumulated and saved; and

(d) be followed by the individual.

(3) Additional disregards applicable to needy individuals under 21, pregnant women, persons ineligible for ADC solely because their income and resources exceed the ADC eligibility standards, parents described in section 360-3.8(b) (7) of this Part. These disregards are to be applied in the following order:

(i) the first $90 of earned income;

(ii) all of the earned income of a child under 21 who is attending a school, college or university or vocational or technical training designed to prepare a person for gainful employment will be disregarded if the student is employed part-time. If a full-time student is employed full-time, his/her income will be disregarded for up to six months in a calendar year;

(iii) after the disregards in subparagraphs (i) and (ii) of this paragraph have been applied, $30 plus one-third of the remainder of monthly earned income will be disregarded for four consecutive months, and $30 per month will be disregarded for an additional eight months after that. This disregard will apply only if:

(a) the applicant received ADC payments in one of the four preceding months;

(b) the period of four consecutive months in which the $30 plus onethird disregard is applied includes any period in which the disregard was applied under the ADC program according to section 352.20 of this Title;

(c) the additional eight-month period following the fourth consecutive month that the $30 plus one-third disregard was applied, and ends with the eighth consecutive month regardless of whether the $30 disregard is actually applied to the person's earned income; and

(d) except as provided in this subparagraph, the disregard is applied in the same manner and subject to the same restrictions as the disregard provided to ADC applicants. Section 352.20(c), (d) and (e) of this Title explain the ADC disregard;

(iv) for individuals employed full-time throughout the month, an amount equal to the actual cost, but not to exceed $175, for the care of each dependent child two years of age or older or incapacitated adult living in the same home and receiving assistance, and an amount equal to the actual cost, but not to exceed $200, for the care of each dependent child under two years of age living in the same home and receiving assistance; for those individuals working less than full-time or not employed throughout the month, an amount equal to the actual cost, but less than $175, for the care of each dependent child two years of age or older or incapacitated adult, and an amount equal to the actual cost, but less than $200 for each dependent child under two years of age;

(v) the first $50 of any child or spousal support payments received in a month;

(vi) money received by a family based on the enrollment of a youth in the Job Corps under the Job Training Partnership Act;

(vii) health insurance premiums; and

(viii) for a person providing family day care for children other than his/her own, $5 per day for each such child.

(b) Resource disregards. (1) Burial funds of MA applicants/recipients and their families will be disregarded as follows:

(i) for needy individuals under 21 years of age and persons ineligible for ADC solely because their income and resources are above eligibility limits, a burial fund will be disregarded if it is separately identifiable as a contractual funeral agreement with a maximum equity value of $1,500 per family member; and

(ii) for persons 65 years of age or older, certified blind or certified disabled, and for spouses of such persons, a burial fund of up to $1,500 will be disregarded if the funds are separately identifiable and monitored as a burial fund. Such burial fund will be made up first of any life insurance policies with a face value of $1,500 or less.

(2) For MA applicants/recipients who are 65 years of age or older, certified blind, or certified disabled, the following additional resources will be disregarded:

(i) all property which is contiguous to the applicant's/recipient's homestead. The term homestead is defined in section 360-1.4(f) of this Part. Contiguous property is the land adjoining the homestead and the buildings located on such land. To be considered contiguous, the land must adjoin the plot on which the home is located and must not be separated from it by intervening real property owned by others. Property will be considered to adjoin other property if the only intervening real property is an easement or public right-of-way such as a street, road, or utility line;

(ii) life insurance policies with a combined face value of $1,500 or less;

(iii) on or after September 1, 1987, pension funds belonging to an ineligible or nonapplying legally responsible relative which are held in individual retirement accounts or in work-related pension plans, including plans for self-employed individuals such as Keogh plans. However, amounts disbursed from a pension fund to a pensioner are income to the pensioner which will be considered in the deeming process;

(iv) reparation payments received from the Republic of Germany provided that the reparation payments remain identifiable as such;

(v) for a period of nine months following the month of receipt, retroactive SSI and social security benefits received during the period of October 1, 1987 through September 30, 1989; for a period of six months following the month of receipt, retroactive SSI and Social Security benefits received on or after October 1, 1989;

(vi) for a period of nine months following the month of receipt, payments received from a fund established by a state to aid victims of crime;

(vii) for a period of nine months following the month of receipt, relocation assistance provided by a state or local government that is received on or after May 1, 1991 and is comparable to assistance provided under title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 which is subject to the treatment required by section 216 of such Act; and

(viii) payments made by the Austrian government under paragraphs 500 to 506 of the Austrian General Social Insurance Act provided that the payments remain identifiable as such.

(3) For certified blind or certified disabled MA applicants/recipients under 65 years of age, and for certified blind or certified disabled MA applicants/recipients age 65 or over who received SSI payments or aid under the State Plan for the blind or disabled for the month preceding the month of their 65th birthday, any remaining countable resources may be set aside for a plan to achieve self-support in accordance with the provisions of subparagraph (a) (2) (xxi) of this section.

(4) For all MA applicants/recipients, payments provided as a preventive housing service under subdivision 423.4(1) of this Title will be disregarded.

(5) A child's savings account of under $500 accumulated from gifts from non-legally responsible relatives or from the child's own wages will be disregarded in determining eligibility.

(6) Benefits received by eligible Japanese-Americans or Aleuts under the federal Civil Liberties Act of 1988 or the Aleutian and Pribilof Islands Restitution Act will be disregarded.

(7) For all MA applicants/recipients, payments provided from the Agency Orange Settlement Fund, from any other fund established pursuant to the settlement in the In re Agent Orange product liability litigation, or from court proceedings brought for personal injuries sustained by veterans resulting from exposure to dioxin or phenoxy herbicides in connection with the war in Indochina in the period of January 1, 1962 through May 7, 1975, will be disregarded.

(8) For all MA applicants/recipients, any payment received under title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.

(9) For all MA applicants/recipients, for the month of receipt and the following month, refunds or advance payments of the Federal Earned Income Tax Credit.

(10) For needy individuals under the age of 21, pregnant women, persons ineligible for ADC solely because their income and resources exceed the ADC eligibility standards, and parents described in section 360-3.3(b)(7) of this Part, bona fide loans will be disregarded. Bona fide loans are described in section 352.22 of this Title.

(11) Any federal major disaster and emergency assistance provided under the Disaster Relief Act of 1974 (P.L. 93-288), as amended by the Disaster Relief and Emergency Assistance Amendments of 1988 (P.L. 100-707), and any comparable disaster assistance provided by states, local governments, and disaster assistance organizations will be disregarded.

(12) For all MA applicants/recipients, interests of individual Native Americans in trust or restricted lands, from funds appropriated in satisfaction of judgments of the Indian Claims Commission or the United States Court of Federal Claims will be disregarded in determining eligibility.

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Section 360-4.7 - Standard exemptions.

360-4.7 Standard exemptions. (a) Resources. All resources available to the household of a pregnant woman, an infant younger than one year of age, a child at least one year of age but younger than six years of age whose household income does not exceed 133 percent of the applicable Federal poverty line set forth in section 360-4.7(b) of this Subpart, or child born after September 30, 1983 who is at least six years of age but younger than 19 years of age and whose household income does not exceed 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart, are exempt from consideration in determining whether such pregnant woman, infant, or child is medically needy. The following resources are exempt from consideration in determining whether any other MA applicant/recipient is medically needy:

(1) a homestead which is essential and appropriate to the needs of the household. Homestead is defined in section 360-1.4(f) of this Part.

(i) For persons under 21 years of age and persons ineligible for ADC solely because their income and resources are above eligibility limits, a homestead loses its exempt status if the owner is in a medical facility in permanent absence status, as defined in section 360-1.4(k) of this Part, and no spouse, child under 21 years of age, certified blind or certified disabled child, or other dependent relative is living in the home.

(ii) For persons who are 65 years of age or older, certified blind or certified disabled, a homestead loses its exempt status if the owner moves out of the home without the intent to return, and no spouse, child under 21 years of age, certified blind or certified disabled child, or other dependent relative is living in the home.

(iii) As set forth in section 360-4.4(c)(2) of this Part, transfers of homesteads to certain persons may result in ineligibility for MA coverage of certain care, services, and supplies, including nursing facility services;

(2) essential personal property including but not limited to:

(i) clothing and personal effects;

(ii) household furniture, appliances, and equipment;

(iii) tools and equipment which are necessary for a trade or business; and

(iv) an automobile;

(3) one burial plot or space per household member; and

(4) savings equal to at least one half of the appropriate income exemption allowed.

(b) Income. (1) After an applicant's/recipient's household size has been determined, all available income identified and all applicable disregards applied, the applicant's/recipient's net available household income will be compared to the appropriate standard, except as provided in paragraphs (2), (3) and (4) of this subdivision. The standard which will be used by the social services district is the MA standard shown on the following schedule, or the public assistance (PA) standard of need, whichever is higher.

Schedule MA-2

Number in Household   1          2              3           4              5              6              7

*Annual                   $6,700   $9,700   $9,800   $10,200   $11,900   $13,600   $15,300

**Monthly                  $ 559    $ 809    $ 817      $ 850       $ 992      $ 1,134     $ 1,275

*For each additional person after seven add $1,700.

**For each additional person after seven add $ 142.

(2) The net available income of a pregnant woman, an infant younger than one year of age, or a child born after September 30, 1983 who is at least six years of age but younger than 19 years of age will be compared to the highest of the following three amounts: the applicable MA standard; the applicable PA standard of need; or, 100 percent of the applicable poverty line, as set forth in the following schedule:

Poverty Lines effective January 1, 1996

Number in Household   1            2               3             4               5              6              7

*Annual                    $7,740   $10,360   $12,980   $15,600   $18,220   $20,840   $23,460

**Monthly                  $ 645     $ 863      $ 1,081    $ 1,300     $ 1,518   $ 1,736    $ 1,955

*For each additional person after seven add $2,620.

**For each additional person after seven add $ 218.

(3) If the net available household income of a pregnant woman or infant younger than one year of age exceeds the highest of the three amounts described in paragraph (2) of this subdivision, the social services district will compare it to 185 percent of the applicable federal poverty line, as set forth in the following schedule:

185 Percent of Poverty Lines effective January 1, 1996

Number in Household    1             2             3               4            5              6               7

*Annual                   $14,319   $19,166   $24,013   $28,860   $33,707   $38,554   $43,401

**Monthly                $ 1,193     $ 1,597   $ 2,001    $ 2,405     $ 2,808   $ 3,212     $ 3,616

*For each additional person after seven add $4,847.

**For each additional person after seven add $ 403.

(4) The net available household income of a child at least one year of age but younger than six years of age will be compared to the applicable MA standard or the PA standard of need, whichever is higher. If the net available household income of such child exceeds the higher of these two amounts, the social services district will compare it to 133 percent of the applicable Federal poverty line, as set forth in the following schedule:

133 Percent of Poverty Lines effective January 1, 1996

Number in Household     1              2               3              4                5                6              7

*Annual                    $10,294    $13,778    $17,263    $20,748    $24,232    $27,717    $31,201

**Monthly                  $ 857      $ 1,148      $ 1,438     $ 1,729      $ 2,019    $ 2,309     $ 2,600

*For each additional person after seven add $3,484.

**For each additional person after seven add $ 290.

(5) To determine if an individual meets the income requirements to be a specified low income Medicare beneficiary as defined in 360-7.7(i) of this Part, compare the individual's income to 100 percent of the poverty line as defined in paragraph (2) of this subdivision and 120 percent of the poverty line as set forth in the following schedule. The individual's income meets the income requirements if it is greater than 100 percent, but less than 120 percent of the poverty line:

The 110 Percent of Poverty Lines schedule in paragraph (5) of subdivision (b) of section 360-4.7 is amended to read as follows:

120 Percent of Poverty Lines effective January 1, 1996

Number in Family     1              2

*Annual                $9,288    $12,432

**Monthly              $ 774      $ 1,036

 

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Section 360-4.8 - Determination of financial eligibility; effect of excess

360-4.8 Determination of financial eligibility; effect of excess income and resources on eligibility. (a) Financial eligibility.

(1) Except as provided in paragraphs (2), (3), (4), and (5) of this subdivision, an applicant/recipient is financially eligible for MA if his or her net available income and net available resources do not exceed the appropriate standards. The standards are found in section 360-4.7 of this Subpart.

(2) (i) A pregnant woman is financially eligible for MA if her net available income does not exceed the highest of the following three items: the applicable MA standard; the applicable PA standard of need; or 100 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart.

(ii) A pregnant woman is financially eligible for comprehensive prenatal care services available under the Prenatal Care Assistance Program, as listed in Public Health Law, section 2522, if her net available income exceeds the highest of the three items listed in subparagraph (i) of this paragraph but does not exceed 185 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart.

(3) An infant younger than one year of age is financially eligible for MA if his or her net available household income does not exceed 185 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart.

(4) A child at least one year of age but younger than six years of age is financially eligible for MA if his or her net available household income does not exceed 133 percent of the applicable Federal poverty line set forth in section 360-4.7(b) of this Subpart.

(5) A child born after September 30, 1983 who is at least six years of age but younger than 19 years of age is financially eligible for MA if his or her net available household income does not exceed 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart.

(6) Applicants/recipients who are financially eligible under paragraphs (1) through (5) of this subdivision will be authorized to receive MA if they also meet the non-financial eligibility requirements. The non-financial eligibility requirements are found in Subpart 360-3 of this Part.

(b) Reduction of excess resources. An MA applicant/recipient whose net available resources exceed the resource standards will be ineligible for MA until he/she incurs medical expenses equal to or greater than the excess resources. However, nonexempt resources transferred for less than their fair market value may still be considered available, under section 360-4.4(c) of this Subpart.

(c) Reduction of excess income. (1) Except as provided in paragraphs (4) and (5) of this subdivision, if an otherwise eligible MA applicant's or recipient's net available income exceeds the appropriate income standard, he or she will be eligible for MA only after incurring medical expenses equal to or greater than the amount of excess income, provided such medical expenses are not subject to payment by a third party other than another public program of the State or any of its political subdivisions. Once deduction of incurred medical expenses reduces income to the income standard, the MA applicant or recipient is eligible for MA; however, no MA payment will be made for those incurred medical expenses used to establish eligibility. The social services district will deduct from the MA applicant's income the following medical expenses incurred by the applicant, by family members living with the applicant for whom the applicant is legally responsible, and by legally responsible relatives living with the applicant, in the order listed below and regardless of whether these expenses are subject to payment by another public program of the State or any of its political subdivisions:

(i) expenses incurred for Medicare and other health insurance premiums, deductibles, or coinsurance charges;

(ii) expenses incurred for necessary medical and remedial services that are recognized under State law but are not covered by MA; and

(iii) expenses incurred for necessary medical and remedial services that are covered under the MA program.

(2) Budgeting periods. (i) To be eligible for MA coverage for acute care in a medical facility, an applicant/recipient must incur medical expenses equal to or greater than the amount of his/her excess income for a period of six months. Once that amount of medical expenses has been incurred, the applicant/recipient may receive full MA coverage for a period of six months.

(ii) To be eligible for MA coverage of all medical care, services and supplies outside the medical facility, as well as prosthetic appliances (including dentures), the applicant/recipient must incur medical expenses in the month equal to or greater than the amount of his/her excess monthly income. When that amount of medical expenses has been incurred, the applicant/recipient will receive MA outpatient coverage for any additional medical expenses incurred in that month.

(iii) If an MA recipient regularly receives home care in the community but is temporarily absent from the home to receive respite care for a fixed period of up to four weeks in an intermediate care facility, skilled nursing facility, or residential health care facility, he/she will be eligible for MA coverage of the respite care for each month in which incurred medical expenses are at least equal to the amount of monthly excess income. Respite care is infrequent and temporary substitute care or supervision provided to a person on behalf of and in the absence of the caregiver, in order to relieve the caregiver from the stresses or responsibilities of providing constant care and to enable the caregiver to maintain a normal routine. Respite care must be provided in accordance with the terms of approved Federal waivers.

(3) For services regularly requiring prior approval, after the social services district tells the recipient the amount of services that are medically necessary for him/her, as determined by the district according to applicable regulations, additional medical services over and above the amount which is medically necessary cannot be used to reduce the amount of the recipient's excess income.

(4) Except as provided in paragraph (5) of this subdivision, a social services district will authorize MA for an otherwise eligible MA applicant or recipient who pays to the district the amount that his or her net available income exceeds the appropriate income standard, provided that the district submits to the department and receives approval of a plan for the pre-payment of excess income.

(i) A plan for the pre-payment of excess income must provide that:

(a) the MA applicant or recipient has the option of participating in the pre-payment program;

(b) the MA applicant or recipient must pay to the social services district the amount that his or her net available income exceeds the appropriate income standard for the budgeting period specified in paragraph (2) of this subdivision, minus the amount of any medical expenses incurred during the budgeting period or credited pursuant to subparagraph (iii) of this paragraph which are not payable by the MA program;

(c) the social services district must safeguard the amounts paid to it by an MA recipient who participates in the pre-payment program by depositing such amounts in a special pre-payment account;

(d) the social services district must periodically reconcile the amount in the MA recipient's pre-payment account with the amount of MA payments made on his or her behalf for the budgeting period specified in paragraph (2) of this subdivision to determine if a refund to the MA recipient or credit to the MA recipient's pre-payment account for subsequent spenddown period(s) is appropriate; and

(e) the social services district must report to the department the pre-payment amounts collected minus any refunds made pursuant to subparagraph (iii) of this paragraph.

(ii) A plan for the pre-payment of excess income must include a detailed description of how the social services district will:

(a) administer the pre-payment program;

(b) enroll MA applicants and recipients; and

(c) meet the requirements of subparagraphs (i) and (iii) of this paragraph.

(iii) Refunds and credits.

(a) If an MA recipient makes a payment pursuant to this paragraph and then incurs medical expenses during the budgeting period that are not payable by MA, the social services district must:

(1) refund to the MA recipient the amount of such medical expenses from the recipient's pre-payment account for that budgeting period. If the amount of such medical expenses exceeds the MA recipient's pre-payment account for that budgeting period, the district must credit the remainder to the MA recipient's pre-payment account for the subsequent spenddown period(s); or

(2) credit the amount of such medical expenses to the MA recipient's pre-payment account for the subsequent spenddown period(s).

A plan for the pre-payment of excess income may provide for the social services district to make this refund separately as described in this clause or as part of the periodic refund described in clause (b) of this subparagraph.

(b) The social services district will periodically compare the amount in the MA recipient's prepayment account, minus any amount to be refunded for medical expenses which are not payable by MA, to the amount of MA payments made on his or her behalf for the budgeting period specified in paragraph (2) of this subdivision. If the former exceeds the latter, the social services district must periodically refund the difference to the MA recipient or credit the difference to the recipient's pre-payment account for the subsequent spenddown period(s).

(iv) When a social services district submits a pre-payment plan for excess income to the department for approval, the department will approve, disapprove, or request the social services district to modify such plan within 90 days of receipt of the plan.

(5)(i) Federally nonparticipating persons described in section 360-3.3(b) (7) of this Part whose net available income exceeds the appropriate income standard cannot become eligible for MA by incurring medical expenses equal to or greater than the amount of their excess income.

(ii) (a) A pregnant woman whose net available income exceeds 185 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart:

(1) cannot become eligible for comprehensive prenatal care services listed in Section 2522 of the Public Health Law by incurring medical expenses equal to or greater than the amount by which her net available income exceeds 185 percent of such line; and

(2) cannot become eligible for full MA coverage by incurring medical expenses equal to or greater than the amount by which her net available income exceeds 100 percent of such line.

(b) A pregnant woman whose net available income exceeds 100 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart but does not exceed 185 percent of such line cannot become eligible for full MA coverage by incurring medical expenses equal to or greater than the amount by which her net available income exceeds 100 percent of such line.

(c) An infant younger than one year of age whose net available income exceeds 185 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart cannot become eligible for MA by incurring medical expenses equal to or greater than the amount by which his or her net available income exceeds 185 percent of such line.

(iii) A child at least one year of age but younger than six years of age whose net available household income exceeds 133 percent of the applicable Federal poverty line set forth in section 360-4.7(b) of this Subpart cannot become eligible for MA coverage by incurring medical expenses equal to or greater than the amount by which his or her net available household income exceeds 133 percent of such poverty line.

(iv) A child born after September 30, 1983 who is at least six years of age but younger than 19 years of age whose net available household income exceeds 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart cannot become eligible for MA by incurring medical expenses equal to or greater than the amount by which his or her net available household income exceeds 100 percent of such poverty line.

(v) A pregnant woman or child described in subparagraphs (ii), (iii), or (iv) of this paragraph can become eligible for full MA coverage only by incurring medical expenses equal to or greater than the amount by which his or her net available household income exceeds the higher of the applicable MA standard or PA standard of need.

 

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Section 360-4.9 - Post-eligibility utilization of income.

360-4.9 Post-eligibility utilization of income. For a person in permanent absence status in a medical facility, after MA eligibility is established the person is subject to chronic care budgeting. Under chronic care budgeting, all income must be applied toward the cost of care in the facility, including income disregarded or considered unavailable for the purpose of determining MA eligibility. However, before any income is required to be applied to the person's cost of care, deductions will be made in the following order:

(a) For an institutionalized person without a community spouse:

(1) A personal needs allowance of $50 will be allotted to an applicant/recipient who is a resident of a residential health care facility, as defined by article 28 of the Public Health Law, or who is in permanent absence status in an acute care hospital certified under article 28 of the Public Health Law. A personal needs allowance of $35 will be allotted to an applicant/recipient who is a resident of a psychiatric care facility, developmental center, or related intermediate care facility regulated by article 31 of title E of the Mental Hygiene Law. A personal needs allowance equal to the amount of a reduced veteran's pension pursuant to 38 U.S.C. 5503(f), but not to exceed $90, will be allotted to an applicant/recipient who receives such pension or who has elected a greater compensation benefit under 38 CFR 3.701 in lieu of such pension.

(2) An amount will be deducted to cover third-party health insurance premiums.

(3) An amount will be set aside to meet any maintenance needs of dependent members of the applicant's/recipient's former family household. The amount deducted will be the amount needed to bring the income of the family up to the MA standard or the public assistance standard of need, whichever is higher.

(4) An amount will be deducted to cover any expenses incurred for medical care, services, supplies, or remedial care for the institutionalized individual not subject to payment under this Title or by a third party.

(5) The following income received by an applicant/recipient in a residential health care facility is not required to be applied toward the cost of medical care:

(i) money received as the result of a legal action against the residential health care facility because of improper and/or inadequate treatment;

(ii) income necessary to achieve a plan of self-support as described in section 360-4.6(a)(2)(xxi) of this Subpart;

(iii) SSI benefits paid under section 1611(e)(1)(E) of the Social Security Act;

(iv) reparation payments received from the Federal Republic of Germany;

(v) benefits paid to eligible Japanese-Americans and Aleuts under the Federal Civil Liberties Act of 1988 and the Aleutian and Pribilof Islands Restitution Act;

(vi) payments made from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In re Agent Orange product liability litigation, and payments received from court proceedings brought for personal injuries sustained by veterans resulting from exposure to dioxin or phenoxy herbicides in connection with the war in Indochina in the period of January 1, 1962 through May 7, 1975; and

(vii) income equal to the amount of a reduced pension pursuant to 38 U.S.C. 5503(f), for a veteran's surviving spouse who receives such a pension; such income will count toward the personal needs allowance described in paragraph (1) of this subdivision.

(b) For an institutionalized spouse, as defined in section 360-4.10(a)(7) of this Subpart, the deductions set forth in section 360-4.10(b)(4) of this Subpart and in paragraphs (a)(2) and (5) of this section will be made.

 

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

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 a 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 amounts 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 incomeproducing 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 or 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) (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 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 Subpart, 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 thirty 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 spouse'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 a resource allowance adequate to provide such minimum monthly maintenance needs allowance from those resources considered to be available to the institutionalized spouse.

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Effective Date: 
Wednesday, December 21, 2005