New York Codes, Rules and Regulations › Title 18 - DEPARTMENT OF SOCIAL SERVICES › Chapter II - Regulations of the Department of Social Services › Subchapter B - Public Assistance › Article 2 - Determination of Eligibility-Categorical › Part 360 - MEDICAL ASSISTANCE › Subpart 360-4 - Financial Eligibility › Section 360-4.10 - Treatment of income and resources of institutionalized spouses

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Definitions.
			   Notwithstanding any regulations to the contrary, when used in this section,
			   unless the context clearly requires otherwise:
(1) Applicable percent of the annual Federal
			   poverty level means 122 percent as of September 30, 1989, 133 percent as of
			   July 1, 1991, and 150 percent on and after July 1, 1992.
(2) Community spouse means person who is the
			   spouse of an institutionalized person and who is residing in the
			   community.
(3) Community spouse
			   monthly income allowance means the amount by which the community spouse's
			   minimum monthly maintenance needs allowance, as defined in paragraph (8) of
			   this subdivision, exceeds the community spouse's otherwise available monthly
			   income, or such greater amount as may be established by fair hearing decision
			   or court order for the support of the community spouse.
(4) Community spouse resource allowance.
(i) Prior to January 1, 1996, community
			   spouse resource allowance means the amount by which the greatest of the
			   following amounts exceeds the total value of the community spouse's resources:
(a) $60,000 ( as increased annually by the
			   same percentage as the percentage increase in the Federal consumer price
			   index);
(b) the amount established
			   for support of the community spouse pursuant to a fair hearing under Part 358
			   of this Title; or
(c) the amount
			   transferred pursuant to court order for the support of the community
			   spouse.
(ii) On and
			   after January 1, 1996, community spouse resource allowance means the amount by
			   which the greatest of the following amount exceeds the total value of the
			   community spouse's resources:
(a)
			   $74,820;
(b) the lesser of the
			   spousal share (as defined in paragraph [11] of this subdivision), or $60,000 (
			   as increased annually by the same percentage as the percentage increase in the
			   Federal consumer price index);
(c)
			   the amount established for support of the community spouse pursuant to a fair
			   hearing under Part 358 of this Title; or
(d) the amount transferred pursuant to court
			   order for the support of the community spouse.
(5) Family member means a minor child,
			   dependent child, dependent parent or dependent sibling of the institutionalized
			   spouse or of the community spouse who resides with the community spouse. For
			   purposes of this paragraph, a person is dependent if over 50 percent of his/her
			   maintenance needs are met by the community spouse and/or the institutionalized
			   spouse.
(6) Family allowance for
			   each family member is an amount equal to one third of the amount by which the
			   applicable percent of one twelfth of the annual Federal poverty level for a
			   family of two members exceeds the amount of the available monthly income of
			   that family member.
(7)
			   Institutionalized spouse means a person who: is in a medical institution or
			   nursing facility and is likely to remain in a medical institution or nursing
			   facility for at least 30 consecutive days or is receiving home and
			   community-based services provided pursuant to a waiver under section 1915(c) of
			   the Federal Social Security Act and is likely to receive such services for at
			   least 30 consecutive days; and who is married to a spouse who is not in a
			   medical institution or nursing facility or who is not likely to receive such
			   home and community-based services pursuant to a waiver under section 1915(c) of
			   the Social Security Act for 30 consecutive days.
(8) Minimum monthly maintenance needs
			   allowance means an amount equal to $1,500 to be increased annually by the same
			   percentage as the percentage increase in the Federal consumer price
			   index.
(9) Resources do not include
			   those disregarded or exempt under sections 360- 4.4(d), 360-4.6(b) and
			   360-4.7(a) of this Subpart, except that pension funds belonging to a community
			   spouse which are held in individual retirement accounts or in work-related
			   pension plans, including plans for self-employed individuals such as Keogh
			   plans, are countable resources of the community spouse for purposes of
			   determining the institutionalized spouse's eligibility and calculating the
			   amount of any community spouse resource allowance.
(10) Significant financial distress means
			   exceptional expenses which the community spouse cannot be expected to meet from
			   the monthly maintenance needs allowance or from amounts held in resources. Such
			   expenses may be of a recurring nature or may represent major one time costs,
			   and may include but are not limited to: recurring or extraordinary noncovered
			   medical expenses; amounts to preserve, maintain or make major repairs on the
			   homestead; and amounts necessary to preserve an income-producing
			   asset.
(11) Spousal share means an
			   amount equal to one-half of the total value of the countable resources of the
			   community spouse and the institutionalized spouse, as of the beginning of the
			   first continuous period of institutionalization beginning on or after September
			   30, 1989, to the extent that either, or both, have an ownership interest as of
			   the date of the continuous period of institutionalization of the
			   institutionalized spouse.
(12)
			   Undue hardship means a situation where:
(i) a
			   community spouse fails to refuses to cooperate in providing necessary
			   information about his/her resources;
(ii) the institutionalized spouse is
			   otherwise eligible for MA;
(iii)
			   the institutionalized spouse is unable to obtain appropriate medical care
			   without the provision of MA; and
(iv)
(iv)
(a) the community spouse's whereabouts are
			   unknown; or
(b) the community
			   spouse is incapable of providing the required information due to illness or
			   mental incapacity; or
(c) the
			   community spouse lived apart from the institutionalized spouse immediately
			   prior to institutionalization; or
(d) due to the action or inaction of the
			   community spouse, other than the failure or refusal to cooperate in providing
			   necessary information about his/her resources, the institutionalized spouse
			   will be in need of protection from actual or threatened harm, neglect, or
			   hazardous conditions if discharged from an appropriate medical
			   setting.