§ 366-C — Treatment of income and resources of institutionalized persons

§ 366-c. Treatment of income and resources of institutionalized\npersons. 1. Notwithstanding any other provision of law to the contrary,\nin determining the eligibility for medical assistance of a person\ndefined as an institutionalized spouse, the income and resources of such\nperson and the person's community spouse shall be treated as provided in\nthis section.\n 2. (a) For purposes of this section an "institutionalized spouse" is a\nperson (i) who is in a medical institution or nursing facility and\nexpected to remain in such facility or institution for at least thirty\nconsecutive days; or (ii) who is receiving care, services and supplies\npursuant to a waiver pursuant to subsection (c) of section nineteen\nhundred fifteen of the federal social security act, or successor to such\nwaiver, or is receiving care, services and supplies in a managed\nlong-term care plan pursuant to section eleven hundred fifteen of the\nsocial security act; and (iii) who is married to a person who is not in\na medical institution or nursing facility or is not receiving waiver\nservices described in subparagraph (ii) of this paragraph; provided,\nhowever, that medical assistance shall be furnished pursuant to this\nparagraph only if, for so long as, and to the extent that federal\nfinancial participation is available therefor. The commissioner of\nhealth shall make any amendments to the state plan for medical\nassistance, or apply for any waiver or approval under the federal social\nsecurity act that are necessary to carry out the provisions of this\nparagraph.\n (b) For purposes of this section, a "community spouse" is a person who\nis the spouse of an "institutionalized spouse".\n (c) For the purposes of this section, "spousal share" means an amount\nequal to one-half of the total value of the resources of the community\nspouse and the institutionalized spouse, as of the beginning of the\nfirst continuous period of institutionalization beginning on or after\nthe thirtieth day of September, nineteen hundred eighty-nine, to the\nextent that either, or both, have an ownership interest as of the date\nof the continuous period of institutionalization of the\ninstitutionalized spouse.\n (d) For the purposes of this section, "community spouse resource\nallowance" means the amount, if any, by which the greatest of the\nfollowing amounts exceeds the total value of the resources otherwise\navailable to the community spouse:\n (i) (A) prior to January first, nineteen hundred ninety-five, sixty\nthousand dollars, which shall be increased annually by the same\npercentage as the percentage increase in the federal consumer price\nindex;\n (B) on and after January first, nineteen hundred ninety-five through\nJune thirtieth, nineteen hundred ninety-nine, seventy-four thousand\neight hundred twenty dollars or such greater amount as may be required\nunder federal law;\n (ii) the lesser of sixty thousand dollars which shall be increased\nannually by the same percentage as the percentage increase in the\nfederal consumer price index or the spousal share; or\n (iii) the amount established for support of the community spouse\npursuant to a fair hearing under this section; or\n (iv) the amount transferred pursuant to court order for the support of\nthe community spouse.\n (e) For purposes of this section, "resources" do not include resources\nexcluded in determining eligibility for benefits under title XVI of the\nfederal social security act, as defined by the commissioner consistent\nwith federal law.\n (f) For purposes of this section, "family member" includes only a\ndependent or minor child, a dependent parent, or a dependent sibling of\nthe institutionalized spouse or the community spouse, who resides with\nthe community spouse.\n (g) For purposes of this section, "community spouse monthly income\nallowance" is the amount by which the minimum monthly maintenance needs\nallowance for the community spouse exceeds the monthly income otherwise\navailable to the community spouse unless a greater amount is established\npursuant to a fair hearing under this section or pursuant to court order\nfor the support of the community spouse.\n (h) For purposes of this section, "minimum monthly maintenance needs\nallowance" is an amount equal to one-twelfth of the applicable\npercentage of the federal income official poverty line for a family of\ntwo, plus an excess shelter allowance, provided however, such amount\nshall not be less than one thousand five hundred dollars per month, nor\nexceed one thousand five hundred dollars (as adjusted in the discretion\nof the commissioner for changes in the federal consumer price index for\ncalendar years after nineteen hundred eighty-nine) per month.\n (i) For purposes of this section, "family allowance for each family\nmember" is an amount equal to the one-third times one-twelfth of the\napplicable percentage of the federal income official poverty line to a\nfamily of two, less the monthly income otherwise available to the family\nmember.\n (j) For purposes of this section, the "applicable percentage of the\nfederal income official poverty line" shall be one hundred twenty-two\npercent as of September thirtieth, nineteen hundred eighty-nine; one\nhundred thirty-three percent as of July first, nineteen hundred\nninety-one and one hundred fifty percent on and after July first,\nnineteen hundred ninety-two.\n (k) For purposes of this section, the "excess shelter allowance" shall\nbe the amount by which the community spouse's rent, mortgage, or\ncondominium or cooperative maintenance fees, taxes and insurance, and\nutilities exceed thirty percent of one-twelfth of the applicable\npercentage of the federal income official poverty line for two persons.\n 3. Unless established by a preponderance of the evidence to the\ncontrary, the following presumptions shall apply in determining the\navailability of income to an institutionalized spouse in determining\neligibility for medical assistance.\n (a) During any month in which an institutionalized spouse is in the\ninstitution or facility, no income of the community spouse shall be\nconsidered available to the institutionalized spouse except as provided\nin this subdivision; and\n (b) Income solely in the name of the institutionalized spouse or the\ncommunity spouse shall be considered available only to that spouse; and\n (c) Income in the names of the institutionalized spouse and the\ncommunity spouse shall be considered available one-half to each spouse;\nand\n (d) Income in the names of the institutionalized spouse or the\ncommunity spouse, or both, and also in the name of another person or\npersons, shall be considered available to each spouse in proportion to\nthe spouse's interest or, if in the names of both spouses and no share\nis specified, one-half of the joint interest shall be considered\navailable to each spouse; and\n (e) (i) Income from a trust shall be considered available to each\nspouse in accordance with the provisions of the trust instrument, or, in\nabsence of a specific trust provision allocating income, in accordance\nwith the provisions of paragraphs (a) through (d) of this subdivision;\nand\n (ii) Additionally, income from a trust shall be attributed in\naccordance with the provisions of this title and title XIX of the\nfederal social security act; and\n (f) Income in which there is no instrument establishing ownership\nshall be considered to be available one-half to the institutionalized\nspouse and one-half to the community spouse.\n * 4. In determining the amount of income to be applied toward the cost\nof medical care, services and supplies of the institutionalized spouse,\nafter the institutionalized spouse has been determined eligible for\nmedical assistance, the following items shall be deducted from the\nmonthly income of the institutionalized spouse in the following order:\n (a) a personal needs allowance;\n (b) a community spouse monthly income allowance;\n (c) a family allowance for each family member;\n (d) any expenses incurred for medical care, services or supplies and\nremedial care for the institutionalized spouse;\nprovided, however, that, to the extent required by federal law, the\nterms of this subdivision shall not apply to persons who are receiving\ncare, services and supplies pursuant to the following waivers under\nsection 1915(c) of the federal social security act: the nursing facility\ntransition and diversion waiver authorized pursuant to subdivision six-a\nof section three hundred sixty-six of this title; the traumatic brain\ninjury waiver authorized pursuant to section twenty-seven hundred forty\nof the public health law, the long term home health care program waiver\nauthorized pursuant to section three hundred sixty-seven-c of this\ntitle, and the home and community based services waiver for persons with\ndevelopmental disabilities, or successor to such waiver, administered by\nthe office for people with developmental disabilities pursuant to an\nagreement with the federal centers for medicare and Medicaid services.\n * NB Effective until March 31, 2028\n * 4. In determining the amount of income to be applied toward the cost\nof medical care, services and supplies of the institutionalized spouse,\nafter the institutionalized spouse has been determined eligible for\nmedical assistance, the following items shall be deducted from the\nmonthly income of the institutionalized spouse in the following order:\n (a) a personal needs allowance;\n (b) a community spouse monthly income allowance;\n (c) a family allowance for each family member;\n (d) any expenses incurred for medical care, services or supplies and\nremedial care for the institutionalized spouse.\n * NB Effective March 31, 2028\n 5. The following rules apply in determining the resources of the\ninstitutionalized spouse and the community spouse in establishing\neligibility for medical assistance:\n (a) All resources, including resources required to be considered in\ndetermining eligibility pursuant to paragraph (c) of subdivision five of\nsection three hundred sixty-six of this title, held by either the\ninstitutionalized spouse or the community spouse or both shall be\nconsidered available to the institutionalized spouse to the extent that\nthe value of the resources exceeds the community spouse resource\nallowance.\n (b) An institutionalized spouse shall not be ineligible for medical\nassistance by reason of excess resources determined under paragraph (a)\nof this subdivision, if the institutionalized spouse executes an\nassignment of support from the community spouse in favor of the social\nservices district and the department, or the institutionalized spouse is\nunable to execute such assignment due to physical or mental impairment,\nor to deny assistance would create an undue hardship, as defined by the\ncommissioner.\n (c) After the month in which the institutionalized spouse has been\ndetermined eligible for medical assistance during a continuous period of\ninstitutionalization, no resource of the community spouse shall be\nconsidered available to the institutionalized spouse.\n 6. Notwithstanding paragraph (c) of subdivision five of section three\nhundred sixty-six of this title and after an institutionalized spouse is\ndetermined eligible for medical assistance, transfers of resources by\nthe institutionalized spouse to the community spouse shall be permitted\nto the extent that the transfers are solely to or for the benefit of the\ncommunity spouse and do not exceed the value of the community spouse\nresource allowance. Such transfers must be made as soon as practicable\nafter the determination of eligibility.\n 7. (a) At the beginning or after the commencement of a continuous\nperiod of institutionalization, either spouse may request an assessment\nof the total value of their resources or a determination of the\ncommunity spouse monthly income allowance, the amount of the family\nallowance, or the method of computing the amount of the family\nallowance, or the method of computing the amount of the community spouse\nincome allowance.\n (b) (i) Upon receipt of a request pursuant to paragraph (a) of this\nsubdivision together with all relevant documentation of the resources of\nboth spouses, the social services district shall assess and document the\ntotal value of the spouses' resources and provide each spouse with a\ncopy of the assessment and the documentation upon which it was based. If\nthe request is not part of an application for medical assistance\nbenefits, the social services district may charge a fee for the\nassessment which is related to the cost of preparing and copying the\nassessment and documentation which fee may not exceed twenty-five\ndollars.\n (ii) The social services district shall also notify each requesting\nspouse of the community spouse monthly income allowance, of the amount,\nif any, of the family allowances, and of the method of computing the\namount of the community spouse monthly income allowance.\n (c) The social services district shall also provide to the spouse a\nnotice of the right to a fair hearing at the time of provision of the\ninformation requested under paragraph (a) of this subdivision or after a\ndetermination of eligibility for medical assistance. Such notice shall\nbe in the form prescribed or approved by the commissioner and include a\nstatement advising the spouse of the right to a fair hearing under this\nsection.\n 8. (a) If, after a determination on an application for medical\nassistance has been made, either spouse is dissatisfied with the\ndetermination of the community spouse monthly allowance, the amount of\nmonthly income otherwise available to the community spouse, the\ncomputation of the spousal share of resources, the attribution of\nresources or the determination of the community spouse's resource\nallocation, the spouse may request a fair hearing to dispute such\ndetermination. Such hearing shall be held within thirty days of the\nrequest therefor.\n (b) If either spouse establishes that the community spouse needs\nincome above the level established by the social services district as\nthe minimum monthly maintenance needs allowance, based upon exceptional\ncircumstances which result in significant financial distress (as defined\nby the commissioner in regulations), the department shall substitute an\namount adequate to provide additional necessary income from the income\notherwise available to the institutionalized spouse.\n (c) If either spouse establishes that income generated by the\ncommunity spouse resource allowance, established by the social services\ndistrict, is inadequate to raise the community spouse's income to the\nminimum monthly maintenance needs allowance, the department shall\nestablish a resource allowance for the spousal share of the\ninstitutionalized spouse adequate to provide such minimum monthly\nmaintenance needs allowance.\n