§ 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.