Section 131-O. Personal allowances accounts

1. Each individual receiving
  family care, residential care or care  in  a  school  for  the  mentally
  retarded,  or  enhanced  residential  care as those terms are defined in
  section two hundred nine of this chapter, and who is receiving  benefits
  under  the program of additional state payments pursuant to this chapter
  while receiving such care, shall  be  entitled  to  a  monthly  personal
  allowance out of such benefits in the following amount:
    (a)  in  the  case of each individual receiving family care, an amount
  equal to at least $130.00 for each month beginning on or  after  January
  first, two thousand nine.
    (b)  in  the  case  of  each individual receiving residential care, an
  amount equal to at least $150.00 for each month beginning  on  or  after
  January first, two thousand nine.
    (c)  in  the  case  of  each individual receiving enhanced residential
  care, an amount equal to at least $178.00 for each month beginning on or
  after January first, two thousand nine.
    (d) for the period commencing January first,  two  thousand  ten,  the
  monthly  personal needs allowance shall be an amount equal to the sum of
  the amounts set forth in subparagraphs one and two of this paragraph:
    (1) the amounts specified in paragraphs  (a),  (b)  and  (c)  of  this
  subdivision; and
    (2)  the  amount  in subparagraph one of this paragraph, multiplied by
  the percentage of any  federal  supplemental  security  income  cost  of
  living adjustment which becomes effective on or after January first, two
  thousand  ten, but prior to June thirtieth, two thousand ten, rounded to
  the nearest whole dollar.
    * (e) in the case of each individual  receiving  enhanced  residential
  care,  (i)  an  amount  equal  to $168.00 for each month beginning on or
  after January first, two thousand  eight.  (ii)  On  and  after  January
  first,  two  thousand  nine, the amount set forth in subparagraph (i) of
  this paragraph shall be annually increased by the same percentage of any
  federal supplemental security income cost  of  living  adjustment  which
  becomes  effective  on  or  after  January  first,  but  prior  to  June
  thirtieth, of each calendar  year,  provided  that  there  has  been  an
  increase  in  state  supplementation  pursuant  to  subparagraph (ii) of
  paragraph (g) of section two hundred nine of this chapter.
    * NB Effective until December 31, 2009
    * (e) in the case of each individual  receiving  enhanced  residential
  care, an amount equal to at least $144.00 for each month beginning on or
  after  January  first,  two thousand six, and an amount equal to $159.00
  for each month beginning on or after January first, two thousand seven.
    * NB Repealed December 31, 2009
    2. The personal allowance described in subdivision one of this section
  shall be made directly available to the individual for his  own  use  in
  obtaining  clothing,  personal  hygiene  items,  and  other supplies and
  services for his personal use not otherwise provided by the  residential
  facility.  Any  waiver  of  the  right  to  a  personal  allowance by an
  individual entitled to it shall be void. The facility  shall,  for  each
  such  individual, offer to establish a separate account for the personal
  allowance. Each individual electing to utilize such an account shall  be
  entitled to a statement upon request, and in any case quarterly, setting
  forth  the  deposits  and  withdrawals,  and  the current balance of the
  account. A facility shall not demand, require or contract for payment of
  all or any part  of  the  personal  allowance  in  satisfaction  of  the
  facility  rate  for  supplies  and  services  and  shall  not charge the
  individual or the account for any supplies or services that the facility
  is by law, regulation or  agreement  with  the  individual  required  to
  provide  or  for  any  medical supplies or services for which payment is

  available under medical assistance, pursuant  to  this  title,  medicare
  pursuant to title XVIII of the federal social security act, or any third
  party  coverage.  Any  service  or  supplies  provided  by the facility,
  charged to the individual or the account shall be provided only with the
  specific consent of the individual, who shall be furnished in advance of
  the  provision  of  the  services or supplies with an itemized statement
  setting forth the charges for  the  services  or  supplies.  Whenever  a
  resident  authorizes  an operator of a facility to exercise control over
  his or her personal allowance such authorization shall be in writing and
  subscribed by the parties to be charged. Any such  money  shall  not  be
  mingled  with the funds or become an asset of the facility or the person
  receiving the  same,  but  shall  be  segregated  and  recorded  on  the
  facility's financial records as independent accounts.
    3.  Any  individual  who  has  not  received  or  been able to control
  personal allowance funds to the extent and in  the  manner  required  by
  this  section  may  maintain an action in his own behalf for recovery of
  any such funds, and upon a showing that  the  funds  were  intentionally
  misappropriated or withheld to other than the intended use, for recovery
  of  additional  punitive  damages in an amount equal to twice the amount
  misappropriated  or  withheld.  The  department  may   investigate   any
  suspected  misappropriation  or  withholding of personal allowance funds
  and may maintain an action on behalf of any individual  to  recover  any
  funds  so  misappropriated,  including  any  punitive damages. Any funds
  obtained as  a  result  of  such  an  action  shall  be  disregarded  in
  determining  such  individual's  eligibility  for  or amount of benefits
  available pursuant to this chapter, to the extent permitted  by  federal
  law and regulation.
    4.  Each  facility  subject  to  the  provisions of this section shall
  maintain in accordance with department regulations complete records  and
  documentation  of all transactions involving resident personal allowance
  accounts, and shall make such records available to the department and to
  any other agency responsible for the inspection and supervision  of  the
  facility  upon  request, with respect to any individual who is receiving
  additional state payments.
    5. Any agency having supervisory responsibilities  over  any  facility
  subject  to  the  provisions  of  this section shall, at the time of any
  inspection of such a  facility,  inquire  into  the  furnishing  of  and
  accounting  for  resident  personal  allowances,  and  shall  report any
  violations or suspected violations of this section  to  the  department.
  The  department  shall  have  primary  responsibility for monitoring the
  personal allowance requirements of this section; provided, however, that
  the department may by cooperative agreement delegate such monitoring and
  enforcement functions,  in  whole  or  in  part,  with  respect  to  any
  facility,  to any other state agency having supervisory responsibilities
  over such facility.
    6. At the time an individual ceases to be a resident at  the  facility
  maintaining  a  resident  personal  allowance account on his behalf, the
  funds in such account shall be transferred to such individual or another
  appropriate individual or agency for use on his  behalf,  in  accordance
  with department regulations.
    7. Any facility subject to the provisions of this section shall assure
  that any income of an individual residing therein that not considered in
  determining  such  individual's  eligibility  for  or amount of benefits
  under the program of additional state payments pursuant to title six  of
  article  five  of  this  chapter,  other  than unearned income paid from
  non-public sources for the purpose of meeting the cost, in  part  or  in
  whole,  of  such  person's  care  and maintenance in such a facility, is

  treated in the same manner as the personal allowance required to be made
  available to the individual pursuant to this section.
    8.  In  any  case  in  which a person receives a payment of additional
  state payment benefits for a month other than the  month  in  which  the
  payment  is received, the full monthly personal allowance for the months
  to which the payment is attributable shall  be  made  available  to  the
  individual  at  such  time as the payment has been received; in no event
  shall the facility be found to have failed to comply with the provisions
  of this section solely by reason of having failed to make  such  monthly
  personal  allowance available prior to the time such payment is actually
  received.
    9. In addition to any damages or civil penalties to which a person may
  be subject;
    (a) any person  who  intentionally  withholds  a  resident's  personal
  allowance,  or  who  demands,  beneficially  receives,  or contracts for
  payment of all or any  part  of  a  resident's  personal  allowances  in
  satisfaction  of  the  facility  rate for supplies and services shall be
  guilty of a class A misdemeanor;
    (b) any person who commingles, borrows from or  pledges  any  personal
  allowance  funds  required  to  be  held  in a separate account shall be
  guilty of a class A misdemeanor.