N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-4.3

Current through Register Vol. 46, No. 50, December 11, 2024

Section 360-4.3 - Available income

(a) Available income of an MA applicant/recipient will be determined as follows:

(1) All earned and unearned income received during the month will be considered. In determining the amount of earned and unearned income, allowable business expenses will be deducted, as described in subdivisions (c) and (d) of this section.

(2) Certain types of in-kind income will be deducted as described in subdivision (e) of this section.

(3) Income deemed available from legally responsible relatives will be added, as described in subdivision (f) of this section.

(4) Income allocated to dependent family members will be deducted. The amount remaining after the calculations in paragraphs (1) through (4) of this subdivision are made, is the applicant's/recipient's available income.

(b) Types of income.

(1) Income means any payment from any source. It includes payments of money, goods, or services. It includes payments made on a one-time basis and on a recurring basis. It includes both earned and unearned income. Income received by an MA applicant/recipient is counted in the month in which it is received when determining MA eligibility. Resources, however, may be retained from month to month up to the levels exempted in section 360-4.7(a) of this Subpart.

(2) Earned income is income received as a result of working. Earned income includes, but is not limited to, wages, salaries, tips, commissions, bonuses and income from self-employment or a small business.

(3) Unearned income is income that is not received as compensation for work performed. Unearned income includes, but is not limited to, pensions, benefits, dividends, interest, and insurance compensation.

(4) In-kind income is income received in goods or services rather than in money. In-kind income can be earned or unearned.

(c) Income from self-employment or small business. Income from a person's self-employment or from a small business owned and operated by the person, after allowable business expenses are deducted, is considered available earned income. The following allowable business expenses may generally be deducted:

(1) rental of quarters and equipment;

(2) salaries and fringe benefits of employees;

(3) cost of goods for resale;

(4) business taxes, licenses and permits;

(5) cost of tools, supplies and raw materials;

(6) insurance for the business;

(7) lights, heat, water, sewage and telephone charges;

(8) advertising and travel;

(9) taxes and carrying charges on any property used in the business (other than payments on the principal of a mortgage);

(10) for aged, certified blind, or certified disabled applicants/recipients, depreciation costs for buildings, equipment and materials necessary for and directly related to the operation of the business; and

(11) any other expense necessary for and directly related to the operation of the business.

(d) Income from rental of property.

(1) Income received from the rental of a person's real or personal property, after allowable business expenses are deducted, is considered available income of the person. For persons under 21 years of age, pregnant women, persons ineligible for ADC solely because their income and/or resources are above the amounts allowed for ADC eligibility, and parents described in section 360- 3.3(b)(7) of this Part, such income will be considered earned income. For persons 65 years of age or older, certified blind, or certified disabled, such income will be considered unearned income. The following business expenses are deductible:

(i) property, school, water and sewer taxes;

(ii) the cost of utilities if they are included in the rent;

(iii) interest payments on mortgages for the property (but not payments on the principal of the mortgage);

(iv) the cost of essential repairs on the property (but not the cost of improvements to the property);

(v) wages paid to employees for maintaining the property; and

(vi) any other expenses necessary for the maintenance of the property.

(2) A person renting out a portion of his/her homestead, as defined in section 360-1.4(f) of this Part, may deduct the business expenses listed in paragraph (1) of this subdivision to the extent that they are attributable to the rented portion of the property.

(3) When a person lives in income-producing property that is not a homestead, a reasonable rental allowance for the portion occupied by the person must be added to the total rental income before deducting allowable business expenses.

(e) In-kind income.

(1) Earned or unearned in-kind income received from legally responsible relatives living outside the MA household is considered available income pursuant to subdivision (f) of this section. In-kind income received from anyone other than a legally responsible relative is considered available income only if it is earned income. Gifts and one- time contributions are not considered available income, regardless of the source; however, they can be counted against the resource standard.

(2) The value of in-kind income will be determined based on the current market value of the goods or services received. The current market value is the amount that would be received if the goods or services were sold on the open market in the applicant' s/recipient's local area. However, the value of housing provided as in-kind income will be the current market value of the housing or the social services district's maximum shelter allowance, whichever is less.

(f) Legally responsible relatives.

(1) This paragraph explains when the income and resources of a legally responsible relative is considered available to an MA applicant/recipient. Legally responsible relative is defined in section 360-1.4(h) of this Part.

(i) Legally responsible relative living with an MA applicant/recipient who is not an institutionalized spouse as defined in section 360-4.10 of this Subpart. A portion of the legally responsible relative's income and resources, if he/she is of sufficient financial ability, will be considered available to the MA applicant/recipient. With respect to MA applicants/recipients who are 65 years of age or older, certified blind, or certified disabled, the amount of a legally responsible relative's income, if any, to be deemed available to the applicant/recipient will be determined in accordance with Federal supplemental security income program regulations providing for the allocation of an amount of such relative's income to meet the needs of certain family members living with the applicant/recipient. The applicant/recipient will not be denied MA if the legally responsible relative refuses or fails to contribute toward the applicant's/recipient's medical support. However, the furnishing of MA will create an implied contract with the legally responsible relative and the cost of any MA provided may be recovered from such relative by the social services district pursuant to sections 101 and 366 (3)(a) of the Social Services Law.

(ii) Legally responsible relative living apart from a noninstitutionalized MA applicant/recipient. The legally responsible relative, if of sufficient financial ability, will be asked to contribute a portion of his/her income and resources to the MA applicant/recipeint. Regardless of the amount of any requested contribution, only the amount that the legally responsible relative actually contributes to the noninstitutionalized MA applicant/recipient will be considered available when determining MA eligibility. However, the social services district may seek to recover the cost of any MA provided from the legally responsible relative pursuant to sections 101 and 366 (3)(a) of the Social Services Law.

(iii) Spouses living apart due to institutionalization of one spouse. The ability of the community spouse to contribute income to the institutionalized spouse's cost of care will be determined in accordance with section 360-4.10(b) of this Subpart. The availability of the community spouse's resources will be determined in accordance with section 360-4.10(c) of this Subpart.

(iv) Parents of a child under the age of 21 who is certified blind or certified disabled and who is expected to be living separately from the parental household for 30 days or more, will not be requested to make their income and resources available to meet the cost of the child's necessary care or assistance; or to provide information concerning their income and resources.

(2)

(i) The social services district must request a legally responsible relative, other than a community spouse as defined in section 360.4 -10 of this Subpart, to contribute any excess resources toward the support the MA applicant/recipient.

(ii) In determining the amount of contribution to be requested, legally responsible relatives who are not aged, certified blind, or certified disabled will be allowed the resource disregard in section 360-4.6(b)(1) of this Subpart and the standard resource exemptions listed in section 360-4.7(a) of this Subpart. Legally responsible relatives who are aged, certified blind, or certified disabled will be allowed the resource disregards in section 360- 4.6(b) of this Subpart and the standard resource exemptions listed in section 360-4.7(a) of this Subpart.

N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-4.3