360-4.4 Available resources.
(a) Resources means property of all kinds, including real property and
personal property. It includes both tangible and intangible property.
(b) An applicant's/recipient's available resources include:
(1) all resources in the control of the
applicant/recipient. It also includes any resources in the control of anyone acting on the
applicant's/recipient's behalf such as a guardian, conservator, representative, or
committee;
(2) certain resources transferred for less than
fair market value, as explained in subdivision (c) of this section;
(3) all or part of the equity value of certain
income-producing property, as explained in subdivision (d) of this section;
(4) certain resources of legally responsible
relatives, as explained in subdivision 360-4.3(f) of this Subpart; and
(5) certain resources of an MA-qualifying
trust, as explained in subdivision 360-4.5 of this Subpart.
(c) Transfer of assets.
(1) Transfers made by an applicant/recipient on
or after October 1, 1989 and prior to September 1, 1991; and transfers made by an
applicant/recipient or his/her spouse on or after September 1, 1991.
(i) General rule. Any
transfer of a resource for less than fair market value made within or after the 30- month
period immediately preceding the date a person becomes an institutionalized person, or the
date an institutionalized person applies for MA, whichever is later, shall be presumed to
have been made for the purpose of qualifying for: nursing care and related services in a
nursing facility; a level of care provided in a hospital which is equivalent to the level
of care provided in a nursing facility; or care, services, or supplies furnished pursuant
to a waiver under Section 1915(c) of the federal Social Security Act. The uncompensated
value of the transferred resource will be considered an available resource and the
transfer will result in a period of ineligibility for these services, as explained in
subparagraph (iii) of this paragraph. For purposes of this paragraph, an institutionalized
person means an in-patient in a nursing facility, an in-patient in a medical facility who
is receiving a level of care provided in a nursing facility, or a person receiving care,
services, or supplies pursuant to a waiver under Section 1915(c) of the federal Social
Security Act.
(ii) Exceptions. A
person will not be ineligible for MA as a result of a transfer described in subparagraph
(i) of this paragraph if:
(a) the resource transferred was a disregarded or exempt resource under sections
360-4.4(d), 360-4.6(b), and 360-4.7(a)(2)-(4) of this Subpart.
(b) the resource transferred was a homestead, as defined in section 360-1.4(f) subdivision
360-1.4(f) of this Part, and title to the homestead was transferred to:
(1) the spouse of such person; or
(2) a child of such person who is certified blind, certified permanently and totally
disabled, or under the age of twenty-one; or
(3) a sibling of such person who has an equity interest in such home and who was residing
in such home for a period of at least one year immediately before the date the person
becomes institutionalized; or
(4) a son or daughter of such person who was residing in such home for a period of at
least two years immediately before the date the person becomes institutionalized, and who
provided care, as defined in section BD+>311.4(a)(1) of this Title, to such person
which permitted such person to reside at home rather than in an institution or facility;
or
(c)
(1) the resource was transferred by the applicant/recipient on or after October 1, 1989
and prior to September 1, 1991, and the transfer was:
(i) to or for the sole benefit of the community spouse, as defined in subdivision
360-4.10(a) of this Subpart; or
(ii) to the applicant's/recipient's child who is certified blind or certified permanently
and totally disabled; or
(iii) to or for the sole benefit of the appliclant's/ recipient's spouse (other than a
community spouse), provided such spouse does not transfer such resource to another person
other than the applicant/ recipient for less than fair market value within the period
provided for by subparagraph (iii) hereof; or
(2) the resource was transferred by the applicant/recipient or his/her spouse on or after
September 1, 1991, and the transfer was:
(i) between spouses or to another for the sole benefit of the person's spouse; or
(ii) to the person's child who is certified blind or certified permanently and totally
disabled; or
(d)
(1) a satisfactory showing is made that:
(i) the person or the person's spouse intended to dispose of the resource either at fair
market value, or for other valuable consideration; or
(ii) the resource was transferred exclusively for a purpose other than to qualify for:
nursing care and related services in a nursing facility; a level of care provided in a
hospital which is equivalent to the level of care provided in a nursing facility; or care,
services, or supplies furnished pursuant to a waiver under Section 1915(c) of the federal
Social Security Act; or
(2) in the absence of a satisfactory showing under subclause (1), it is determined that
the denial of eligibility will result in an undue hardship. Denial of eligibility will
result in an undue hardship if:
(i) the institutionalized person is otherwise eligible for MA;
(ii) the institutionalized person is unable to obtain appropriate medical care without the
provision of MA; and
(iii) despite his/her best efforts, the institutionalized person or the person's spouse is
unable to have the transferred resource returned or to receive fair market value for the
resource. Best efforts include cooperating, as deemed appropriate by the commissioner of
the social services district, in the pursuit of the return of such resource.
(iii) Period of
Ineligibility.
(a) Any transfer made under this paragraph will cause the applicant/ recipient to be
ineligible for nursing facility services; for a level of care equivalent to that of
nursing facility services provided in a hospital; and for care, services, or supplies
provided pursuant to a waiver under Section 1915(c) of the federal Social Security Act.
Such person will remain ineligible for such services for the lesser of:
(1) thirty months from the date of transfer; or
(2) a period equal to the uncompensated value of the transferred resources divided by the
average cost of care to a private patient for skilled nursing facility services in the
region in which such person is institutionalized, on the date the person first applies or
recertifies for MA as an institutionalized person.
(b) For purposes of this subparagraph:
(1) uncompensated value is the fair market value of the resource at the time it was
transferred, less any compensation received for the resource; and
(2) the cost of care to a private patient in the region in which the person is
institutionalized will be presumed to be 120 percent of the average MA rate for skilled
nursing facility care for the facilities within the region. The average regional rate will
be updated each January first by the Department. Regions shall be the same as those
established by Section 2807-c of the Public Health Law.
(c) Notwithstanding the provisions of clause (a) of this subparagraph, multiple transfers
of resources within a 30-month period will be considered to be a single transfer of the
total amount of such resources, and the period of ineligibility required by clause (a)
will run from the date of the first transfer, to the extent that:
(1) the resources were available at the time of the first transfer and could have been
transferred all at once; and
(2) treating the transfers as separate would result in concurrent periods of
ineligibility, and in a shorter total period of ineligibility than if the transfers are
considered to be a single transfer.
(2) Transfers made by an applicant/recipient or
his/her spouse on or after August 11, 1993.
(i) Definitions.
(a) Assets include all income and resources of the individual and of the individual's
spouse, including income or resources to which the individual or the individual's spouse
is entitled but does not receive because of any action or inaction by:
(1) the individual or the individual's spouse;
(2) a person with legal authority to act in place of or on behalf of the individual or the
individual's spouse;
(3) a person acting at the direction of or upon the behalf of the individual or the
individual's spouse; or
(4) a court or administrative body with legal authority to act in place of or on behalf of
the individual or the individual's spouse or at the direction or upon the request of the
individual or the individual's spouse.
(b) Institutionalized individual means an in-patient in a nursing facility (including an
intermediate care facility for the mentally retarded), an in-patient in a medical facility
who is receiving a level of care provided in a nursing facility, or an individual
receiving care, services, or supplies pursuant to a waiver under section 1915(c) of the
federal Social Security Act.
(c) Look-back period means the 36-month period, or, in the case of payments to or from a
trust which are considered to be assets transferred by an applicant/recipient pursuant to
subdivision (b) of section 360-4.5 of this Subpart, the 60-month period, immediately
preceding the date that an institutionalized individual is both institutionalized and has
applied for MA.
(d) Nursing facility means a nursing home as defined by section 2801 of the Public Health
Law or an intermediate care facility for the mentally retarded.
(e) Nursing facility services means nursing care and health related services provided in a
nursing facility, a level of care provided in a hospital which is equivalent to the level
of care provided in a nursing facility, and care, services, or supplies furnished pursuant
to a waiver under section 1915(c) of the federal Social Security Act.
(f) Uncompensated value of a transferred asset means the fair market value of the asset at
the time it was transferred, less any compensation received in exchange for the asset.
(ii) General rule. In
determining the MA eligibility of an institutionalized individual, any transfer of assets
for less than fair market value made by the individual or the individual's spouse within
or after the look-back period will render the individual ineligible for nursing facility
services, as explained in subparagraph (iv) of this paragraph.
(iii) Exceptions. An
individual will not be ineligible for MA as a result of a transfer described in
subparagraph (ii) of this paragraph if:
(a) the asset transferred was a disregarded or exempt asset under sections 360-4.4(d),
360-4.6, and 360-4.7 of this Subpart, other than a homestead; or
(b) the asset transferred was a homestead, as defined in subdivision 360-1.4(f) of this
Part, and title to the homestead was transferred to:
(1) the spouse of the individual; or
(2) a child of the individual who is blind, disabled, or under the age of 21; or
(3) a sibling of the individual who has an equity interest in such homestead and who was
residing in such homestead for a period of at least one year immediately before the date
the individual became an institutionalized individual; or
(4) a child of such individual who was residing in such homestead for a period of at least
two years immediately before the date the individual became an institutionalized
individual, and who provided care, as defined in section 311.4(a)(1) of this Title, to
such individual which permitted such individual to reside at home rather than in an
institution or facility; or
(c) (1) the asset was transferred:
(i) to the individual's spouse or to another for the sole benefit of the individual's
spouse; or
(ii) from the individual's spouse to another for the sole benefit of the individual's
spouse; or
(iii) to the individual's child who is blind or disabled, or to a trust established solely
for the benefit of such child; or
(iv) to a trust established solely for the benefit of an individual under 65 years of age
who is disabled.
(d) (1) a satisfactory showing is made that:
(i) the individual or the individual's spouse intended to dispose of the asset either at
fair market value, or for other valuable consideration; or
(ii) the asset was transferred exclusively for a purpose other than to qualify for MA; or
(iii) all assets transferred for less than fair market value have been returned to the
individual; or
(e) it is determined that the denial of eligibility will result in an undue hardship.
Denial of eligibility will result in an undue hardship if:
(i) the institutionalized individual is otherwise eligible for MA;
(ii) the institutionalized individual is unable to obtain appropriate medical care without
the provision of MA; and
(iii) despite his or her best efforts, the institutionalized individual or the
individual's spouse is unable to have the transferred asset returned or to receive fair
market value for the asset. Best efforts include cooperating, as deemed appropriate by the
commissioner of the social services district, in efforts to seek the return of the asset.
(iv) Period of ineligibility.
(a) Any transfer made under this paragraph will cause the applicant/recipient to be
ineligible for nursing facility services for a period of months equal to the total,
cumulative, uncompensated value of all assets transferred during or after the look-back
period divided by the average cost of care to a private patient for nursing facility
services in the region in which such individual is institutionalized, on the date the
individual first applies or recertifies for MA as an institutionalized individual. For
purposes of this subparagraph, the cost of care to a private patient in the region in
which the individual is institutionalized will be presumed to be 120 percent of the
average MA rate for nursing facility care for the facilities within the region. The
average regional rate will be updated each January first by the Department. The regions
will be the same as those established by section 2807-c of the Public Health Law.
(b) The period of ineligibility begins with the first day of the first month during or
after which assets have been transferred for less than fair market value, and which does
not occur in any other period of ineligibility under this subdivision.
(v) Transfers for the sole benefit of a spouse. A transfer by an individual to another is
for the sole benefit of the individual's spouse if: the terms and conditions of the
transfer are specified in a written instrument of transfer (such as a trust document,
deed, or other signed and acknowledged statement), which is executed at or about the time
of transfer, clearly limiting the use and enjoyment of the transferred property to the
individual's spouse; or there is other evidence, including evidence demonstrating a
continuous course of conduct by the person to whom the assets were transferred,
establishing that the use and enjoyment of the transferred property has been, and will
continue to be, limited to the individual's spouse. Any subsequent action by the
individual's spouse, or by the person to whom the assets were transferred for the spouse's
benefit, which reduces or eliminates the spouse's beneficial use of the transferred
property, or the ownership or control of the person to whom the assets were transferred,
may be considered a transfer of assets on the date such action is taken.
(vi) Jointly-owned assets. In the case of an asset held by an individual in common with
another person or persons in a joint tenancy, tenancy in common, or similar arrangement,
the asset or the affected portion of the asset will be considered to be transferred by
such individual when any action is taken, either by such individual or by any other
person, that reduces or eliminates such individual's ownership or control of such asset.
(vii) Apportioning periods of ineligibility. In the case of a transfer by the spouse of an
individual which results in a period of ineligibility for the individual, if the spouse
becomes eligible for MA before such period of ineligibility ends, the remaining portion of
the period of ineligibility will be divided equally between the individual and the spouse
so long as both remain eligible for MA.
(d) Income-producing property. Income-producing property is real
property, buildings and the equipment necessary to run a business. If an MA
applicant/recipient owns income-producing property which produces a net return of less
than six percent of its equity value, the total equity value of the property is an
available resource. If the income-producing property produces a net return of six percent
or more, the amount of equity value of the property above $12,000 is an available
resource. Income-producing property which produces a net return of six percent or more,
but with an equity value of $12,000 or less, is an exempt resource.