N.Y. Social Services Law § 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, 2028

* 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, 2028

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.