N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-4.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 360-4.4 - Available resources

(a) Resources means property of all kinds, including real 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 section 360-4.3(f) of this Subpart; and

(5) certain resources of an MA-qualifying trust, as explained in section 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. Such a transfer shall result in a period of ineligibility for these services, as explained in subparagraph (iii) of this paragraph. For purposes of this paragraph, an institutionalized personmeans an inpatient in a nursing facility, an inpatient 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) 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 21; 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 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 section 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 applicant'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) of this paragraph; 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) of this clause, 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) 30 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 in 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 1st 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 section 360-4.5(b) 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 section 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:

(1) the institutionalized individual is otherwise eligible for MA;

(2) the institutionalized individual is unable to obtain appropriate medical care without the provision of MA; and

(3) 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. The establishment of a trust for the benefit of a spouse will not be considered a transfer for the sole benefit of such spouse if: during the life of the trust, the trustee has the authority to make distributions for the benefit of anyone other than the spouse; or the trust provides that upon its termination, all or part of the remaining principal and income is to be distributed to someone other than the MA applicant/recipient, or the spouse's estate.

(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 includes but is not limited to real property, buildings, liquid business resources, motor vehicles, machinery, livestock, government permits, inventories, tools, and equipment which are used in a trade or business or which produce rents or land-use fees. Certain income-producing property is not considered an available resource for purposes of determining MA eligibility.

(1) For needy individuals under 21, persons ineligible for ADC solely because their income and resources exceed the ADC eligibility standards, and parents described in section 360-3.3(b)(7) of this Part:

(i) the total equity value of nonliquid resources which generate rental income, real property, and buildings is an available resource if the property produces an annual net return of less than six percent of its equity value. If the property produces a net return on equity of six percent or more, the amount of equity value of the property above $12,000, if any, is an available resource; and

(ii) one-quarter of the amount of liquid resources needed annually to operate a trade or business is not considered an available resource. However, if the applicant/recipient demonstrates that he or she will have to expend a higher amount of liquid resources to operate his or her trade or business in the three-month period beginning with the month of MA application, the higher amount will not be considered an available resource; and

(iii) except as provided in paragraph (3) of this subdivision, all other income-producing property is not considered an available resource for this group of MA applicants/recipients.

(2) For aged, certified blind, or certified disabled applicants/recipients, effective May 1, 1990:

(i) the equity value of income-producing property used in a trade or business is not considered an available resource; and

(ii) the equity value of income-producing property not used in a trade or business is considered an available resource if the property: consists of real property or other nonliquid property which generates rental income, land-use fees, or other income; and produces an annual net return of less than six percent of its equity value. If such property produces an annual net return of six percent or more, the amount of equity value of the property above $12,000, if any, is considered an available resource; and

(iii) except as provided in paragraph (3) of this subdivision, all other income-producing property is not considered an available resource for this group of MA applicants/recipients.

(3) For all medically needy MA applicants/recipients, if the equity value of real property and buildings used to produce goods or services for personal use exceeds $12,000 is an available resource. All other property used to produce personal goods or services is not considered an available resource.

N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-4.4