N.M. Admin. Code § 8.215.500.13

Current through Register Vol. 35, No. 23, December 10, 2024

Section 8.215.500.13 - COUNTABLE RESOURCES

Before a resource can be considered countable, the three criteria listed below must be met.

A.Ownership interest: An applicant/recipient must have an ownership interest in a resource for it to be countable. The fact that an applicant/recipient has access to a resource, or has a legal right to use it, does not make it countable unless the applicant/recipient also has an ownership interest in it.

B.Legal right to convert resource to cash: An applicant/recipient must have the legal ability to spend the funds or to convert non-cash resources into cash.

(1)Physical possession of resource: The fact that an applicant/recipient does not have physical possession of a resource does not mean it is not his/her resource. If he/she has the legal ability to spend the funds or convert the resource to cash, the resource is considered countable. Physical possession of savings bonds is a legal requirement for cashing them.

(2)Unrestricted use of resource: An applicant/recipient is considered to have free access to the unrestricted use of a resource even if he/she can take those actions only through an agent, such as a representative payee or guardian.

(3) If there is a legal bar to the sale of a resource, the resource is not countable. If the co-owner of real property can bring an action to partition and sell the property, his/her interest in the property is a countable resource.

C.Legal ability to use a resource: If a legal restriction exists which prevents the use of a resource for the applicant/recipient's own support and maintenance, the resource is not countable.

D.Joint ownership of resources: If an applicant/recipient owns either liquid or non-liquid resources jointly with others, he/she has 30 days from the date requested by the ISD worker to submit all documentation required to prove his/her claims regarding ownership of, access to, and legal ability to use the resource for personal support and maintenance. Failure to do so results in the presumption that the resource is countable and belongs to the applicant/recipient.

(1)Jointly held property: If jointly held property is identified during review of an active case, the ISD worker must:

(a) determine whether the property is a countable resource;

(b) determine whether the value of the jointly held property plus the value of other countable resources exceeds the allowable resource maximum;

(c) if the value of countable resources exceeds the allowable maximum, advance notice is furnished to the applicant/recipient of the intent to close the case and his/her right to verify claims regarding ownership of, access to and legal ability to use the property for personal support and maintenance;

(d) if the applicant/recipient fails to provide required information or respond within the advance notice period, the case is closed; and

(e) if, after expiration of the advance notice period but prior to the end of the month in which the advance notice expires, the applicant/recipient provides the required evidence to show the property is not a countable resource, or is countable in an amount which, when added to the value of other countable resources, does not exceed the maximum allowable limit, and eligibility continues to exist on all other factors, the case is reinstated for the next month.

(2)Joint bank accounts: If liquid resources are in a joint bank account of any type, the applicant/recipient's ownership interest, while the parties to the account are alive, is presumed to be proportionate to the applicant/recipient's contributions to the total resources on deposit.

(a) The applicant/recipient is presumed to own a proportionate share of the funds on deposit unless he/she presents clear and convincing evidence that the parties to the account intended the applicant/recipient to have a different ownership interest.

(b) To establish the applicant/recipient's ownership interest in a joint account, the following are required:

(i) statement by the applicant/recipient regarding contributions to the account; reasons for establishing the account; who owns the funds in the account; and any supporting documentation; plus

(ii) corroborating statements from the other account holder(s); if either the applicant/recipient or the other account holder is not capable of making a statement, the applicant/recipient or representative must obtain a statement from a third party who has knowledge of the circumstances surrounding the establishment of the joint account.

(c) Failure to provide required documentation within 30 days of the date requested by the ISD worker results in a determination that the entire account amount belongs to the applicant/recipient.

(d) If the existence of a jointly held bank account is identified during the review of an active case, the ISD worker requests evidence of ownership and accessibility. If the evidence is not furnished within 30 days of the request, the case is closed.

E.Other countable resources: Other liquid or non-liquid resources must be considered in the calculation of total countable resources. Under certain circumstances, the following non-liquid resources may be included in the calculation of countable resources:

(1) burial funds;

(2) burial spaces;

(3) life estates;

(4) life insurance and other insurance products;

(5) income-producing property; and

(6) other financial investment products.

F.The home as a countable resource: If the applicant/recipient or his/her representative states the applicant/recipient does not intend to return to the home and it is not the residence of the applicant/recipient's spouse or dependent relative, the home is considered a countable resource. If the applicant/recipient or his/her representative puts the home up for sale and it is not the primary residence of the applicant/recipient's spouse or a dependent relative, the home is considered a countable resource.

G.Value of property: The applicant/recipient must supply the ISD worker with written documentation regarding the fair market value of the property from a real estate agent, title company or mortgage insurance company in and familiar with the area in which the property is located in addition to any encumbrances against the property. The ISD worker determines the equity value of the property by subtracting the amount of the encumbrances from the fair market value of the property.

H.ABLE ACT: as Public Law 113-295, The Stephen Beck, Jr., Achieving a Better Life Experience Act (ABLE Act) - enacted December 19, 2014. The ABLE Act shall establish state-run tax advantaged accounts for eligible individuals to use for disability related expenses. Tax-advantaged accounts allow an eligible individual to save and use the funds for disability-related expenses. An ABLE program has been established and maintained by the state. An eligible individual can open an ABLE account through the ABLE program in any state.

(1) Under the ABLE act, individual eligibility is determined if the person is:

(a) Entitled to benefits based on blindness or disability under Title II or Title XVI of the Social Security Act; or

(b) Has a disability certification filed with the U.S. secretary of the treasury and a disability that began before age 26.

(2) ABLE account balances and distributions are considered in determining eligibility for SSI.

(a) Amounts over $100,000 count toward the $2,000 SSI resource limit.

(b) If an ABLE account balance exceeds $100,000 by an amount that causes the recipient to exceed the SSI resource limit the recipient is ineligible for SSI.

(c) The social security administration (SSA) will place such an ineligible individual into a special ABLE suspension period where:

(i) The recipient's SSI benefits are suspended without time limit (as long as he or she remains otherwise eligible).

(ii) The recipient will still be considered to be SSI eligible for the SSI medical assistance program (MAP).

(iii) After 12 months of suspension, eligibility is terminated and the person must reapply for benefits.

(iv) If a person who does not meet other SSI eligibility criteria during a suspension period is ineligible for SSI during a suspension period he or she is also ineligible for the SSI MAP.

(3) Section 529A(d)(4) of the act requires that the state electronically submit on a monthly basis to the Commissioner of Social Security statements on relevant distributions and account balances from all ABLE accounts.

(4) Resource exclusions related to the ABLE ACT can be found at Subsection N of Section 8.215.500.14 NMAC resource exclusions.

(5) For how the ABLE ACT contributions treatment in regards to income please see Section 8.215.500.18 NMAC income.

(6) For how the ABLE ACT distributions please see Subsection D of Section 8.215.500.20 NMAC. unearned income exclusions.

N.M. Admin. Code § 8.215.500.13

2-1-95, 7-31-97; 8.215.500.13 NMAC - Rn, 8 NMAC 4.SSI.512, 3-1-01; A/E, 2-1-07; A, 4-1-09, Adopted by New Mexico Register, Volume XXIX, Issue 04, February 27, 2018, eff. 3/1/2018