NY Soc Serv L § 366-C (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 366-C - Treatment of Income and Resources of Institutionalized Persons.

§  366-c.  Treatment  of  income  and  resources  of institutionalized persons.  1. Notwithstanding any other provision of law to the contrary, in determining the  eligibility  for  medical  assistance  of  a  person defined as an institutionalized spouse, the income and resources of such person and the person's community spouse shall be treated as provided in this section.   2. (a) For purposes of this section an "institutionalized spouse" is a person  (i)  who  is  in  a  medical institution or nursing facility and expected to remain in such facility or institution for at  least  thirty consecutive  days;  or (ii) who is receiving care, services and supplies pursuant to a waiver pursuant to  subsection  (c)  of  section  nineteen hundred fifteen of the federal social security act, or successor to such waiver,  or  is  receiving  care,  services  and  supplies  in a managed long-term care plan pursuant to section eleven hundred  fifteen  of  the social  security act; and (iii) who is married to a person who is not in a medical institution or nursing facility or  is  not  receiving  waiver services  described  in  subparagraph  (ii) of this paragraph; provided, however, that medical assistance shall be  furnished  pursuant  to  this paragraph  only  if,  for  so  long  as,  and to the extent that federal financial participation  is  available  therefor.  The  commissioner  of health  shall  make  any  amendments  to  the  state  plan  for  medical assistance, or apply for any waiver or approval under the federal social security act that are necessary to carry  out  the  provisions  of  this paragraph.  (b) For purposes of this section, a "community spouse" is a person who is the spouse of an "institutionalized spouse".  (c)  For the purposes of this section, "spousal share" means an amount equal to one-half of the total value of the resources of  the  community spouse  and  the  institutionalized  spouse,  as of the beginning of the first continuous period of institutionalization beginning  on  or  after the  thirtieth  day  of  September, nineteen hundred eighty-nine, to the extent that either, or both, have an ownership interest as of  the  date of    the    continuous    period   of   institutionalization   of   the institutionalized spouse.  (d) For the purposes  of  this  section,  "community  spouse  resource allowance"  means  the  amount,  if  any,  by  which the greatest of the following amounts exceeds the total value  of  the  resources  otherwise available to the community spouse:  (i)  (A)  prior  to January first, nineteen hundred ninety-five, sixty thousand  dollars,  which  shall  be  increased  annually  by  the  same percentage  as  the  percentage  increase  in the federal consumer price index;  (B) on and after January first, nineteen hundred  ninety-five  through June  thirtieth,  nineteen  hundred  ninety-nine,  seventy-four thousand eight hundred twenty dollars or such greater amount as may  be  required under federal law;  (ii)  the  lesser  of  sixty thousand dollars which shall be increased annually by the same  percentage  as  the  percentage  increase  in  the federal consumer price index or the spousal share; or  (iii)  the  amount  established  for  support  of the community spouse pursuant to a fair hearing under this section; or  (iv) the amount transferred pursuant to court order for the support of the community spouse.  (e) For purposes of this section, "resources" do not include resources excluded in determining eligibility for benefits under title XVI of  the federal  social  security act, as defined by the commissioner consistent with federal law.  (f) For purposes of this section,  "family  member"  includes  only  a dependent  or minor child, a dependent parent, or a dependent sibling of the institutionalized spouse or the community spouse, who  resides  with the community spouse.  (g)  For  purposes  of  this section, "community spouse monthly income allowance" is the amount by which the minimum monthly maintenance  needs allowance  for the community spouse exceeds the monthly income otherwise available to the community spouse unless a greater amount is established pursuant to a fair hearing under this section or pursuant to court order for the support of the community spouse.  (h) For purposes of this section, "minimum monthly  maintenance  needs allowance"   is  an  amount  equal  to  one-twelfth  of  the  applicable percentage of the federal income official poverty line for a  family  of two,  plus  an  excess  shelter allowance, provided however, such amount shall not be less than one thousand five hundred dollars per month,  nor exceed  one thousand five hundred dollars (as adjusted in the discretion of the commissioner for changes in the federal consumer price index  for calendar years after nineteen hundred eighty-nine) per month.  (i)  For  purposes  of this section, "family allowance for each family member" is an amount equal to the one-third  times  one-twelfth  of  the applicable  percentage  of the federal income official poverty line to a family of two, less the monthly income otherwise available to the family member.  (j) For purposes of this section, the "applicable  percentage  of  the federal  income  official  poverty line" shall be one hundred twenty-two percent as of September thirtieth,  nineteen  hundred  eighty-nine;  one hundred   thirty-three  percent  as  of  July  first,  nineteen  hundred ninety-one and one hundred  fifty  percent  on  and  after  July  first, nineteen hundred ninety-two.  (k) For purposes of this section, the "excess shelter allowance" shall be  the  amount  by  which  the  community  spouse's  rent, mortgage, or condominium or cooperative maintenance fees, taxes  and  insurance,  and utilities  exceed  thirty  percent  of  one-twelfth  of  the  applicable percentage of the federal income official poverty line for two persons.   3. Unless established by  a  preponderance  of  the  evidence  to  the contrary,  the  following  presumptions  shall  apply in determining the availability of income to an  institutionalized  spouse  in  determining eligibility for medical assistance.  (a)  During  any  month in which an institutionalized spouse is in the institution or facility, no income of  the  community  spouse  shall  be considered  available to the institutionalized spouse except as provided in this subdivision; and  (b) Income solely in the name of the institutionalized spouse  or  the community spouse shall be considered available only to that spouse; and  (c)  Income  in  the  names  of  the  institutionalized spouse and the community spouse shall be considered available one-half to each  spouse; and  (d)  Income  in  the  names  of  the  institutionalized  spouse or the community spouse, or both, and also in the name  of  another  person  or persons,  shall  be considered available to each spouse in proportion to the spouse's interest or, if in the names of both spouses and  no  share is  specified,  one-half  of  the  joint  interest  shall  be considered available to each spouse; and  (e) (i) Income from a trust shall  be  considered  available  to  each spouse in accordance with the provisions of the trust instrument, or, in absence  of  a specific trust provision allocating income, in accordance with the provisions of paragraphs (a) through (d) of  this  subdivision; and  (ii)  Additionally,  income  from  a  trust  shall  be  attributed  in accordance with the provisions of  this  title  and  title  XIX  of  the federal social security act; and  (f)  Income  in  which  there  is no instrument establishing ownership shall be considered to be available one-half  to  the  institutionalized spouse and one-half to the community spouse.   * 4. In determining the amount of income to be applied toward the cost of  medical care, services and supplies of the institutionalized spouse, after the institutionalized spouse  has  been  determined  eligible  for medical  assistance,  the  following  items  shall  be deducted from the monthly income of the institutionalized spouse in the following order:  (a) a personal needs allowance;  (b) a community spouse monthly income allowance;  (c) a family allowance for each family member;  (d) any expenses incurred for medical care, services or  supplies  and remedial care for the institutionalized spouse; provided,  however,  that,  to  the  extent required by federal law, the terms of this subdivision shall not apply to persons who  are  receiving care,  services  and  supplies  pursuant  to the following waivers under section 1915(c) of the federal social security act: the nursing facility transition and diversion waiver authorized pursuant to subdivision six-a of section three hundred sixty-six of this title;  the  traumatic  brain injury  waiver authorized pursuant to section twenty-seven hundred forty of the public health law, the long term home health care program  waiver authorized  pursuant  to  section  three  hundred  sixty-seven-c of this title, and the home and community based services waiver for persons with developmental disabilities, or successor to such waiver, administered by the office for people with developmental  disabilities  pursuant  to  an agreement with the federal centers for medicare and Medicaid services.   * NB Effective until March 31, 2023   * 4. In determining the amount of income to be applied toward the cost of  medical care, services and supplies of the institutionalized spouse, after the institutionalized spouse  has  been  determined  eligible  for medical  assistance,  the  following  items  shall  be deducted from the monthly income of the institutionalized spouse in the following order:  (a) a personal needs allowance;  (b) a community spouse monthly income allowance;  (c) a family allowance for each family member;  (d) any expenses incurred for medical care, services or  supplies  and remedial care for the institutionalized spouse.   * NB Effective March 31, 2023   5.  The  following  rules  apply  in  determining the resources of the institutionalized  spouse  and  the  community  spouse  in  establishing eligibility for medical assistance:  (a)  All  resources,  including resources required to be considered in determining eligibility pursuant to paragraph (c) of subdivision five of section three hundred sixty-six  of  this  title,  held  by  either  the institutionalized  spouse  or  the  community  spouse  or  both shall be considered available to the institutionalized spouse to the extent  that the  value  of  the  resources  exceeds  the  community  spouse resource allowance.  (b) An institutionalized spouse shall not be  ineligible  for  medical assistance  by reason of excess resources determined under paragraph (a) of  this  subdivision,  if  the  institutionalized  spouse  executes  an assignment  of  support from the community spouse in favor of the social services district and the department, or the institutionalized spouse is unable to execute such assignment due to physical or mental  impairment,  or  to deny assistance would create an undue hardship, as defined by the commissioner.  (c)  After  the  month  in which the institutionalized spouse has been determined eligible for medical assistance during a continuous period of institutionalization, no resource  of  the  community  spouse  shall  be considered available to the institutionalized spouse.   6.  Notwithstanding paragraph (c) of subdivision five of section three hundred sixty-six of this title and after an institutionalized spouse is determined eligible for medical assistance, transfers  of  resources  by the  institutionalized spouse to the community spouse shall be permitted to the extent that the transfers are solely to or for the benefit of the community spouse and do not exceed the value  of  the  community  spouse resource  allowance.  Such transfers must be made as soon as practicable after the determination of eligibility.   7. (a) At the beginning or after  the  commencement  of  a  continuous period  of institutionalization, either spouse may request an assessment of the total  value  of  their  resources  or  a  determination  of  the community  spouse  monthly  income  allowance,  the amount of the family allowance,  or  the  method  of  computing  the  amount  of  the  family allowance, or the method of computing the amount of the community spouse income allowance.  (b)  (i)  Upon  receipt of a request pursuant to paragraph (a) of this subdivision together with all relevant documentation of the resources of both spouses, the social services district shall assess and document the total value of the spouses' resources and provide  each  spouse  with  a copy of the assessment and the documentation upon which it was based. If the  request  is  not  part  of  an  application  for medical assistance benefits, the  social  services  district  may  charge  a  fee  for  the assessment  which  is  related  to the cost of preparing and copying the assessment and  documentation  which  fee  may  not  exceed  twenty-five dollars.  (ii)  The  social  services district shall also notify each requesting spouse of the community spouse monthly income allowance, of the  amount, if  any,  of  the  family allowances, and of the method of computing the amount of the community spouse monthly income allowance.  (c) The social services district shall also provide to  the  spouse  a notice  of  the  right to a fair hearing at the time of provision of the information requested under paragraph (a) of this subdivision or after a determination of eligibility for medical assistance. Such  notice  shall be  in the form prescribed or approved by the commissioner and include a statement advising the spouse of the right to a fair hearing under  this section.   8.  (a)  If,  after  a  determination  on  an  application for medical assistance has  been  made,  either  spouse  is  dissatisfied  with  the determination  of  the community spouse monthly allowance, the amount of monthly  income  otherwise  available  to  the  community  spouse,   the computation  of  the  spousal  share  of  resources,  the attribution of resources or  the  determination  of  the  community  spouse's  resource allocation,  the  spouse  may  request  a  fair  hearing to dispute such determination. Such hearing shall be held  within  thirty  days  of  the request therefor.  (b)  If  either  spouse  establishes  that  the community spouse needs income above the level established by the social  services  district  as the  minimum monthly maintenance needs allowance, based upon exceptional circumstances which result in significant financial distress (as defined by the commissioner in regulations), the department shall substitute  an amount  adequate  to provide additional necessary income from the income otherwise available to the institutionalized spouse.  (c)  If  either  spouse  establishes  that  income  generated  by  the community  spouse resource allowance, established by the social services district, is inadequate to raise the community spouse's  income  to  the minimum  monthly  maintenance  needs  allowance,  the  department  shall establish   a   resource   allowance   for  the  spousal  share  of  the institutionalized  spouse  adequate  to  provide  such  minimum  monthly maintenance needs allowance.