360-4.9 Post-eligibility utilization of income. For a person in permanent absence status in a medical facility, after MA eligibility is established the person is subject to chronic care budgeting. Under chronic care budgeting, all income must be applied toward the cost of care in the facility, including income disregarded or considered unavailable for the purpose of determining MA eligibility. However, before any income is required to be applied to the person's cost of care, deductions will be made in the following order:

    (a) For an institutionalized person without a community spouse:

        (1) A personal needs allowance of $50 will be allotted to an applicant/recipient who is a resident of a residential health care facility, as defined by Article 28 of the Public Health Law, or who is in permanent absence status in an acute care hospital certified under Article 28 of the Public Health Law. A personal needs allowance of $33.50 will be allotted to an applicant/recipient who is a resident of a psychiatric care facility, developmental center, or related intermediate care facility regulated by Article 31 of the Mental Hygiene Law. A personal needs allowance equal to the amount of a reduced veteran's pension pursuant to 38 U.S.C. 5503(f), but not to exceed $90, will be allocated to an applicant/recipient who receives such pension or who has elected a greater compensation benefit under 38 CFR 3.701 in lieu of such pension.

        (2) An amount will be deducted to cover third party health insurance premiums.

        (3) An amount will be set aside to meet any maintenance needs of dependent members of the applicant's/recipient's former family household. The amount deducted will be the amount needed to bring the income of the family up to the MA standard or the Public Assistance Standard of Need, whichever is higher.

        (4) An amount will be deducted to cover any expenses incurred for medical care, services, supplies, or remedial care for the institutionalized individual not subject to payment under this Title or by a third party.

        (5) The following income received by an applicant/recipient in a residential health care facility is not required to be applied toward the cost of medical care:

            (i) money received as the result of a legal action against the residential health care facility because of improper and/or inadequate treatment;

            (ii) income necessary to achieve a plan of self-support, as described in section 360-4.6(a)(2)(xxi) of this Subpart;

            (iii) SSI benefits paid under section 1611(e)(1)(E) of the Social Security Act;

            (iv) reparation payments received from the Federal Republic of Germany;

            (v) benefits paid to eligible Japanese-Americans and Aleuts under the federal Civil Liberties Act of 1988 and the Aleutian and Pribilof Islands Restitution Act;

            (vi) payments made from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In re Agent Orange product liability litigation, and payments received from court proceedings brought for personal injuries sustained by veterans resulting from exposure to dioxin or phenoxy herbicides in connection with the war in Indochina in the period of January 1, 1962 through May 7, 1975;

            (vii) payments made by the Austrian government under paragraphs 500 to 506 of the Austrian General Social Insurance Act provided that the payments remain identifiable as such; and

            (viii) income equal to the amount of a reduced pension pursuant to 38 U.S.C 5503(f), for a veteran's surviving spouse who receives such a pension; such income will count toward the personal needs allowance described in paragraph (1) of this subdivision.

    (b) For an institutionalized spouse, as defined in section 360-4.10(a)(7) of this Subpart, the deductions set forth in section 360-4.10(b)(4) of this Subpart and in paragraphs (a)(2) and (a)(5) of this section will be made.

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