Colorado § 26-2-114 - Amount of assistance payments - old age pension.

§ 26-2-114. Amount of assistance payments - old age pension.

(1) The basic minimum award payable to those persons qualified to receive an old age pension shall be one hundred dollars monthly; but the state board may adjust the said basic minimum award above one hundred dollars if, in its discretion, living costs have changed sufficiently to justify such adjustment.

(2) (a) and (a.5) Repealed.

(b) (I) The amount of net income from whatever source, either in cash or in kind, which any person qualified for an old age pension may receive shall be deducted from the amount of monthly pension which such person would otherwise receive. The rules and regulations of the state department may require an applicant or recipient who may be eligible for benefits under another federal or state program or who may have a right to receive or recover other income or resources to take reasonable steps to apply for, otherwise pursue, and accept such benefits, income, or resources.

(II) In computing said net income, the county department shall not consider the ownership of real estate occupied as a residence by the recipient as income. In addition, in computing said net income, the county department shall not consider as income funds received by or on behalf of the recipient from the federal government for rent supplementation or relocation payments or income earned by the recipient up to the maximum extent allowed by Title I, section 2, of the social security act.

(III) Whenever the United States congress shall provide by law for a retroactive increase in monthly benefits under the old age, survivors, and disability provisions of the social security act, or for a retroactive increase in monthly benefits under the railroad retirement act, and the amount of such retroactive increase in monthly benefits shall be subsequently paid to an old age pension recipient in a lump sum, then the amount of such lump sum payment shall not be considered as income and shall not be deducted from the amount of monthly pension otherwise payable to such recipient for the month in which such lump sum payment is received.

(IV) Any special payment by the federal government in the form of a one-time-only credit against or refund of federal income taxes shall not be considered as income for purposes of this title unless required by federal law.

Source: L. 73: R&RE, p. 1188, § 2. C.R.S. 1963: § 119-3-14. L. 75: (2)(b)(I) amended, p. 889, § 7, effective July 28. L. 77: (2)(b)(IV) added, p. 1346, § 1, effective May 26. L. 78: (2)(a) R&RE, p. 436, § 1, effective May 4. L. 79: (2)(a.5) added, p. 1439, § 24, effective July 3. L. 83: (2)(a) amended, p. 1130, § 6, effective June 3; (2)(a.5) amended, p. 2101, § 17, effective October 13. L. 87: (2)(a.5) repealed, p. 1159, § 1, effective July 1. L. 91: (2)(a) amended, p. 1857, § 16, effective April 11; (2)(a) amended, p. 1897, § 9, effective July 1. L. 91, 2nd Ex. Sess.: (2)(a) amended, p. 81, § 2, effective October 16. L. 93: (2)(a)(II)(B) repealed, p. 333, § 2, effective April 12; (2)(a)(I) and (2)(a)(II)(A) amended, p. 1147, § 87, effective July 1, 1994. L. 94: (2)(a) amended, p. 1561, § 9, effective July 1; (2)(a)(I) and (2)(a)(II)(A) amended, p. 2625, § 47, effective July 1. L. 2006: (2)(a) amended, p. 1994, § 22, effective July 1. L. 2010: (2)(a)(I) and (2)(a)(II)(A) repealed, (HB 10-1146), ch. 281, p. 1302, § 1, effective January 1, 2011.

Editor's note: Amendments to subsection (2)(a) by Senate Bill 91-105 and House Bill 91-1287 were harmonized. Amendments to subsection (2)(a) by House Bill 94-1029 and Senate Bill 94-133 were harmonized.

Cross references: For the legislative declaration contained in the 1993 act amending subsection (2)(a)(I) and (2)(a)(II)(A), see section 1 of chapter 230, Session Laws of Colorado 1993; for the legislative declaration contained in the 1994 act amending subsection (2)(a)(I) and (2)(a)(II)(A), see section 1 of chapter 345, Session Laws of Colorado 1994.

ANNOTATION

One of primary purposes of home care allowance program is to keep recipients independent and, if possible, to prevent their placement in nursing homes. Department of social services' new eligibility rules, which changed agency's longstanding interpretation of subsection (2)(a), conflicted with both the letter and the intent of home care allowance statutes and were therefore ineffective. Adams v. Colo. Dept. of Soc. Servs., 824 P.2d 83 (Colo. App. 1991) (decided prior to 1991 amendment of subsection (2)(a)).

This section deals with income and does not apply to the ownership of property. Flavell v. Dept. of Welfare, 144 Colo. 203, 355 P.2d 941 (1960).

Applicant living with an employed spouse or with a spouse of ample means who is sharing family necessaries for which the income of such spouse would be chargeable can be said to be receiving income in kind. The value thereof can be determined and the amount deducted from any pension to which the recipient may be entitled. State Bd. of Pub. Welfare v. Champion, 141 Colo. 375, 348 P.2d 256 (1960).

One who has incidentals provided for him receives benefits. One who is sharing in or having paid for him shelter, taxes, interest, repairs, property insurance, water, fuel, gas, electricity, ice, telephone, food, medicines, household equipment, and other incidentals normally necessary to every-day existence, through the income of a spouse, is in receipt of benefits within the realm of inquiry of the department. State Bd. of Pub. Welfare v. Champion, 141 Colo. 375, 348 P.2d 256 (1960).

Department cannot determine by regulation net income of spouse. The department cannot substitute by regulation a fixed calculation of the income of the spouse, less limited deductions, for evidence without regard to the variable circumstances that might be present in each case. State Bd. of Pub. Welfare v. Champion, 141 Colo. 375, 348 P.2d 256 (1960).

A regulation of the department of public welfare staff manual offends this section by usurping a legislative function where it attempts to define, without statutory authority, the net cash income of a spouse over whom the department has no jurisdiction. State Bd. of Pub. Welfare v. Champion, 141 Colo. 375, 348 P.2d 256 (1960).

Evidence insufficient to establish deduction from pension. The production of records of the gross earnings of one other than the old age pension applicant and nothing more falls far short of evidence to establish the amount, if any, to be deducted from the pension of the applicant. State Bd. of Pub. Welfare v. Champion, 141 Colo. 375, 348 P.2d 256 (1960).

Trial court was correct in concluding that the Colorado statutory and regulatory scheme authorizes the inclusion of garnished social security benefits in calculating income for old age pension eligibility. Ramseyer v. Colo. Dept. of Soc. Servs., 895 P.2d 1188 (Colo. App. 1995).

A rational basis exists for using the federal criteria and for including garnished income in determining eligibility for old age pension benefits. Ramseyer v. Colo. Dept. of Soc. Servs., 895 P.2d 1188 (Colo. App. 1995).

Reimbursement of interim assistance payments made to applicants under the state's aid to the needy and disabled program, pending awards of federal supplemental security income benefits, is proper. Gillens v. State Dept. of Soc. Servs., 644 P.2d 97 (Colo. App. 1982).

Applied in Jeffrey v. State Dept. of Soc. Servs., 198 Colo. 265, 599 P.2d 874 (1979).