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 one hundred twenty-two percent as of September 30, 1989, one hundred
thirty-three percent as of July 1, 1991, and one hundred fifty 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 means
the amount by which the greatest of the following amounts exceeds the total value of the
community spouse's resources:
(i) sixty thousand
dollars (as increased annually by the same percentage as the percentage increase in the
federal consumer price index);
(ii) the amount
established for support of the community spouse pursuant to a fair hearing under Part 358
of this Title; or
(iii) 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
family member's otherwise available monthly income.
(7) Institutionalized spouse means a married
person: who is in a medical institution or nursing facility and is likely to remain there
for at least thirty 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 thirty consecutive days; and whose spouse
is not in a medical institution or nursing facility, and is not likely to receive such
home and community- based services for thirty consecutive days.
(8) Minimum monthly maintenance needs allowance
means an amount equal to one thousand five hundred dollars, 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.
(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 of may represent major one-time costs, and may include but are
not limited to: recurring or extraordinary non-covered medical expenses; amounts to
preserve, maintain or make major repairs on the homestead; and amounts necessary to
preserve an income-producing asset.
(11) Undue hardship means a situation where:
(i) a community spouse
fails o
r 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.
(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 will 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 will be considered
available only to that 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, will 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 will be considered available to each spouse.
(v) Income from a trust will 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 will 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 suppliesin accordance with section 360-4.9(b) of this Part, 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, supplies or 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 360-4.10(a)(10) of
this section, the department must substitute an amount adequate to provide additional
necessary income from the income 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
determining 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 income 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
twenty-five dollars 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 service 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 the 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
the institutionalized spouse, the community spouse, or both, will be considered available
to the institutionalized spouse to the extent that the value of the resource 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 transferred to or for the sole benefit 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.