There is a newer version of the New York Consolidated Laws
2006 New York Code - Character And Adequacy Of Assistance.
§ 365-a. Character and adequacy of assistance. 1. The amount, nature
and manner of providing medical assistance for needy persons shall be
determined by the public welfare official with the advice of a physician
and in accordance with the local medical plan, this title, and the
regulations of the department.
2. "Medical assistance" shall mean payment of part or all of the cost
of medically necessary medical, dental and remedial care, services and
supplies, as authorized in this title or the regulations of the
department, which are necessary to prevent, diagnose, correct or cure
conditions in the person that cause acute suffering, endanger life,
result in illness or infirmity, interfere with such person's capacity
for normal activity, or threaten some significant handicap and which are
furnished an eligible person in accordance with this title and the
regulations of the department. Such care, services and supplies shall
include the following medical care, services and supplies, together with
such medical care, services and supplies provided for in subdivisions
three, four and five of this section, and such medical care, services
and supplies as are authorized in the regulations of the department:
(a) services of qualified physicians, dentists, nurses, and private
duty nursing services shall be further subject to the provisions of
section three hundred sixty-seven-o of this chapter, optometrists, and
other related professional personnel;
(b) care, treatment, maintenance and nursing services in hospitals,
nursing homes that qualify as providers in the medicare program pursuant
to title XVIII of the federal social security act, infirmaries or other
eligible medical institutions, and health-related care and services in
intermediate care facilities, while operated in compliance with
applicable provisions of this chapter, the public health law, the mental
hygiene law and other laws, including any provision thereof requiring an
operating certificate or license, or where such facilities are not
conveniently accessible, in hospitals located without the state;
provided, however, that care, treatment, maintenance and nursing
services in nursing homes or in intermediate care facilities, including
those operated by the state department of mental hygiene or any other
state department or agency, shall, for persons who are receiving or who
are eligible for medical assistance under provisions of subparagraph
four of paragraph (a) of subdivision one of section three hundred
sixty-six of this chapter, be limited to such periods of time as may be
determined necessary in accordance with a utilization review procedure
established by the state commissioner of health providing for a review
of medical necessity, in the case of skilled nursing care, every thirty
days for the first ninety days and every ninety days thereafter, and in
the case of care in an intermediate care facility, at least every six
months, or more frequently if indicated at the time of the last review,
consistent with federal utilization review requirements; provided,
further, that in-patient care, services and supplies in a general
hospital shall not exceed such standards as the commissioner of health
shall promulgate but in no case greater than twenty days per spell of
illness during which all or any part of the cost of such care, services
and supplies are claimed as an item of medical assistance, unless it
shall have been determined in accordance with procedures and criteria
established by such commissioner that a further identifiable period of
in-patient general hospital care is required for particular patients to
preserve life or to prevent substantial risks of continuing disability;
provided further, that in-patient care, services and supplies in a
general hospital shall, in the case of a person admitted to such a
facility on a Friday or Saturday, be deemed to include only those
in-patient days beginning with and following the Sunday after such date
of admission, unless such care, services and supplies are furnished for
an actual medical emergency or pre-operative care for surgery as
provided in paragraph (d) of subdivision five of this section, or are
furnished because of the necessity of emergency or urgent surgery for
the alleviation of severe pain or the necessity for immediate diagnosis
or treatment of conditions which threaten disability or death if not
promptly diagnosed or treated; provided, however, in-patient days of a
general hospital admission beginning on a Friday or a Saturday shall be
included commencing with the day of admission in a general hospital
which the commissioner or his designee has found to be rendering and
which continues to render full service on a seven day a week basis which
determination shall be made after taking into consideration such factors
as the routine availability of operating room services, diagnostic
services and consultants, laboratory services, radiological services,
pharmacy services, staff patterns consistent with full services and such
other factors as the commissioner or his designee deems necessary and
appropriate; provided, further, that in-patient care, services and
supplies in a general hospital shall not include care, services and
supplies furnished to patients for certain uncomplicated procedures
which may be performed on an out-patient basis in accordance with
regulations of the commissioner of health, unless the person or body
designated by such commissioner determines that the medical condition of
the individual patient requires that the procedure be performed on an
in-patient basis;
(c) out-patient hospital or clinic services in facilities operated in
compliance with applicable provisions of this chapter, the public health
law, the mental hygiene law and other laws, including any provisions
thereof requiring an operating certificate or license, or where such
facilities are not conveniently accessible, in any hospital located
without the state and care and services in a day treatment program
operated by the department of mental hygiene or by a voluntary agency
under an agreement with such department in that part of a public
institution operated and approved pursuant to law as an intermediate
care facility for the mentally retarded;
(d) home health services provided in a recipient's home and prescribed
by a physician including services of a nurse provided on a part-time or
intermittent basis rendered by an approved home health agency or if no
such agency is available, by a registered nurse, licensed to practice in
this state, acting under the written orders of a physician and home
health aide service by an individual or shared aide provided by an
approved home health agency when such services are determined to be cost
effective and appropriate to meet the recipient's needs for assistance
subject to the provisions of section three hundred sixty-seven-j and
section three hundred sixty-seven-o of this title;
* (e) personal care services in a recipient's home rendered by an
individual, not a member of the family, who is qualified to provide such
services, where the services are prescribed by a physician in accordance
with a plan of treatment and are supervised by a registered nurse;
provided, however, that recipients will receive personal care services
at the medically indicated level, consistent with standards developed by
the commissioner in consultation with local social services
commissioners provided, however, that such standards shall not apply to
persons receiving personal care services pursuant to section three
hundred sixty-seven-c of this chapter or persons residing in family care
homes or community residences as defined in subdivision twenty-eight-a
of section 1.03 of the mental hygiene law certified by the office of
mental health or the office of mental retardation and developmental
disabilities.
* NB Expired March 31, 1985
(e) personal care services, including personal emergency response
services, shared aide and an individual aide, furnished to an individual
who is not an inpatient or resident of a hospital, nursing facility,
intermediate care facility for the mentally retarded, or institution for
mental disease, as determined to meet the recipient's needs for
assistance when cost effective and appropriate in accordance with
section three hundred sixty-seven-k and section three hundred
sixty-seven-o of this title, and when prescribed by a physician, in
accordance with the recipient's plan of treatment and provided by
individuals who are qualified to provide such services, who are
supervised by a registered nurse and who are not members of the
recipient's family, and furnished in the recipient's home or other
location;
(f) preventive, prophylactic and other routine dental care, services
and supplies;
(g) sickroom supplies, eyeglasses, prosthetic appliances and dental
prosthetic appliances furnished in accordance with the regulations of
the department; drugs provided on an in-patient basis, those drugs
contained on the list established by regulation of the commissioner of
health pursuant to subdivision four of this section, and those drugs
which may not be dispensed without a prescription as required by section
sixty-eight hundred ten of the education law and which the commissioner
of health shall determine to be reimbursable based upon such factors as
the availability of such drugs or alternatives at low cost if purchased
by a medicaid recipient, or the essential nature of such drugs as
described by such commissioner in regulations, provided, however, that
such drugs, exclusive of long-term maintenance drugs, shall be dispensed
in quantities no greater than a thirty day supply or one hundred doses,
whichever is greater; provided further that the commissioner of health
is authorized to require prior authorization for any refill of a
prescription when less than seventy-five percent of the previously
dispensed amount per fill should have been used were the product used as
normally indicated; medical assistance shall not include any drug
provided on other than an in-patient basis for which a recipient is
charged or a claim is made in the case of a prescription drug, in excess
of the maximum reimbursable amounts to be established by department
regulations in accordance with standards established by the secretary of
the United States department of health and human services, or, in the
case of a drug not requiring a prescription, in excess of the maximum
reimbursable amount established by the commissioner of health pursuant
to paragraph (a) of subdivision four of this section;
(h) physical therapy and relative rehabilitative services when
provided at the direction of a physician;
(i) laboratory and x-ray services; and
(j) transportation when essential and appropriate to obtain medical
care, services and supplies otherwise available under the medical
assistance program in accordance with this section, upon prior
authorization, except when required in order to obtain emergency care,
and when not otherwise available to the recipient free of charge or
through a transportation program implemented pursuant to section three
hundred sixty-five-h of this title and approved by the commissioner of
health for which federal financial participation is claimed as an
administrative cost;
* (k) care and services furnished by an entity offering a
comprehensive health services plan, including an entity that has
received a certificate of authority pursuant to sections forty-four
hundred three, forty-four hundred three-a or forty-four hundred eight-a
of the public health law (as added by chapter six hundred thirty-nine of
the laws of nineteen hundred ninety-six) or a health maintenance
organization authorized under article forty-three of the insurance law,
to eligible individuals residing in the geographic area served by such
entity, when such services are furnished in accordance with an agreement
approved by the department which meets the requirements of federal law
and regulations provided, that no such agreement shall allow for medical
assistance payments on a capitated basis for nursing facility, home care
or other long term care services of a duration and scope defined in
regulations of the department of health promulgated pursuant to section
forty-four hundred three-f of the public health law, unless such entity
has received a certificate of authority as a managed long term care plan
or is an operating demonstration or is an approved managed long term
care demonstration, pursuant to such section.
* NB Effective until December 31, 2015
* (k) care and services furnished by an entity offering a
comprehensive health services plan to eligible individuals residing in
the geographic area served by such entity, when such services are
furnished in accordance with an agreement approved by the department
which meets the requirements of federal law and regulations.
* NB Effective December 31, 2015
(l) care and services of podiatrists which care and services shall
only be provided upon referral by a physician, nurse practitioner or
certified nurse midwife in accordance with the program of early and
periodic screening and diagnosis established pursuant to subdivision
three of this section or to persons eligible for benefits under title
XVIII of the federal social security act as qualified medicare
beneficiaries in accordance with federal requirements therefor and
private duty nurses which care and services shall only be provided in
accordance with regulations of the department of health; provided,
however, that private duty nursing services shall not be restricted when
such services are more appropriate and cost-effective than nursing
services provided by a home health agency pursuant to section three
hundred sixty-seven-l;
(m) hospice services provided by a hospice certified pursuant to
article forty of the public health law, to the extent that federal
financial participation is available, and, notwithstanding federal
financial participation and any provision of law or regulation to the
contrary, for hospice services provided pursuant to the hospice
supplemental financial assistance program for persons with special needs
as provided for in article forty of the public health law.
* (n) care and services of audiologists provided in accordance with
regulations of the department of health.
* NB There are two paragraph (n)'s
* (n) care, treatment, maintenance and rehabilitation services that
would otherwise qualify for reimbursement pursuant to this chapter to
persons suffering from alcoholism in alcoholism facilities or chemical
dependence, as such term is defined in section 1.03 of the mental
hygiene law, in inpatient chemical dependence facilities, services, or
programs operated in compliance with applicable provisions of this
chapter and the mental hygiene law, and certified by the office of
alcoholism and substance abuse services, provided however that such
services shall be limited to such periods of time as may be determined
necessary in accordance with a utilization review procedure established
by the commissioner of the office of alcoholism and substance abuse
services and provided further, that this paragraph shall not apply to
any hospital or part of a hospital as defined in section two thousand
eight hundred one of the public health law.
* NB There are two paragraph (n)'s
* (o) care and services furnished by a managed long term care plan or
approved managed long term care demonstration pursuant to the provisions
of section forty-four hundred three-f of the public health law to
eligible individuals residing in the geographic area served by such
entity, when such services are furnished in accordance with an agreement
with the department of health and meet the applicable requirements of
federal law and regulation.
* NB Repealed December 31, 2015
* (p) targeted case management services provided to children who
(i) are eighteen years of age or under; and
(ii) either
(1) are physically disabled, according to the federal supplemental
security income program criteria, including but not limited to a person
who is multiply disabled; or
(2) have a developmental disability, as defined in subdivision
twenty-two of section 1.03 of the mental hygiene law and demonstrate
complex health needs as defined in paragraph c of subdivision seven of
section three hundred sixty-six of this title; or
(3) have a mental illness, as defined in subdivision twenty of section
1.03 of the mental hygiene law and demonstrate complex health or mental
health care needs as defined in paragraph d of subdivision nine of
section three hundred sixty-six of this title; and
(iii) require the level of care provided by an intermediate care
facility for the developmentally disabled, a nursing facility, a
hospital or any other institution; and
(iv) are capable of being cared for in the community if provided with
case management services and/or other services provided under this
title; and
(v) are capable of being cared for in the community at less cost than
in the appropriate institutional setting; and
(vi) are not receiving services under section three hundred
sixty-seven-c of this title and for whom services provided under section
three hundred sixty-seven-a of this title are not available or
sufficient to support the children's care in the community.
* NB Effective January 1, 2007; Repealed January 1, 2009
3. Any inconsistent provisions of this section notwithstanding,
medical assistance shall include:
(a) early and periodic screening and diagnosis of eligible persons
under six years of age and, in accordance with federal law and
regulations, early and periodic screening and diagnosis of eligible
persons under twenty-one years of age to ascertain physical and mental
disabilities; and
(b) care and treatment of disabilities and conditions discovered by
such screening and diagnosis including such care, services and supplies
as the commissioner shall by regulation require to the extent necessary
to conform to applicable federal law and regulations.
(c) screening, diagnosis, care and treatment of disabilities and
conditions discovered by such screening and diagnosis of eligible
persons ages three to twenty-one, inclusive, including such care,
services and supplies as the commissioner shall by regulation require to
the extent necessary to conform to applicable federal law and
regulations, provided that such screening, diagnosis, care and treatment
shall include the provision of evaluations and related services rendered
pursuant to article eighty-nine of the education law and regulations of
the commissioner of education by persons qualified to provide such
services thereunder.
(d) family planning services and supplies for eligible persons of
childbearing age, including children under twenty-one years of age who
can be considered sexually active, who desire such services and
supplies, in accordance with the requirements of federal law and
regulations and the regulations of the department. No person shall be
compelled or coerced to accept such services or supplies.
4. Any inconsistent provision of law notwithstanding, medical
assistance shall not include, unless required by federal law and
regulation as a condition of qualifying for federal financial
participation in the medicaid program, the following items of care,
services and supplies:
(a) drugs which may be dispensed without a prescription as required by
section sixty-eight hundred ten of the education law; provided, however,
that the state commissioner of health may by regulation specify certain
of such drugs which may be reimbursed as an item of medical assistance
in accordance with the price schedule established by such commissioner;
* (a-1) a brand name drug for which a multi-source therapeutically and
generically equivalent drug, as determined by the federal food and drug
administration, is available, unless previously authorized by the
department of health. The commissioner of health is authorized to
exempt, for good cause shown, any brand name drug from the restrictions
imposed by this paragraph. This paragraph shall not apply to any drug
that is in a therapeutic class included on the preferred drug list under
section two hundred seventy-two of the public health law or is in the
clinical drug review program under section two hundred seventy-four of
the public health law;
* NB Effective until June 15, 2012
* (a-1) A brand name drug for which a multi-source therapeutically and
generically equivalent drug, as determined by the federal food and drug
administration, is available, unless previously authorized by the
department of health. The commissioner of health is authorized to
exempt, for good cause shown, any brand name drug from the restrictions
imposed by this paragraph;
* NB Effective June 15, 2012
* (a-2) drugs which may not be dispensed without a prescription as
required by section sixty-eight hundred ten of the education law, and
which are non-preferred drugs in a therapeutic class subject to the
preferred drug program pursuant to section two hundred seventy-two of
the public health law, or the clinical drug review program under section
two hundred seventy-four of the public health law, unless prior
authorization is granted or not required;
* NB Repealed June 15, 2012
(b) care and services of chiropractors and supplies related to the
practice of chiropractic;
(c) care and services of an optometrist for using drugs in excess of
the maximum reimbursable amounts for optometric care and services
established by the commissioner and approved by the director of the
budget;
(d) any medical care, services or supplies furnished outside the
state, except, when prior authorized in accordance with department
regulations or for care, services and supplies furnished: as a result of
a medical emergency; because the recipient's health would have been
endangered if he or she had been required to travel to the state;
because the care, services or supplies were more readily available in
the other state; or because it is the general practice for persons
residing in the locality wherein the recipient resides to use medical
providers in the other state;
(e) drugs, procedures and supplies for the treatment of erectile
dysfunction when provided to, or prescribed for use by, a person who is
required to register as a sex offender pursuant to article six-C of the
correction law, provided that any denial of coverage pursuant to this
paragraph shall provide the patient with the means of obtaining
additional information concerning both the denial and the means of
challenging such denial; or
* (f) drugs for the treatment of sexual or erectile dysfunction,
unless such drugs are used to treat a condition, other than sexual or
erectile dysfunction, for which the drugs have been approved by the
federal food and drug administration.
* NB There are 2 sb (f)'s
* (f) for eligible persons who are also beneficiaries under part D of
title XVIII of the federal social security act, drugs which are
denominated as "covered part D drugs" under section 1860D-2(e) of such
act; provided however that, for purposes of this paragraph, "covered
part D drugs" shall not mean atypical anti-psychotics, anti-depressants,
anti-retrovirals used in the treatment of HIV/AIDS, or anti-rejection
drugs used for the treatment of organ and tissue transplants.
* NB There are 2 sb (f)'s
5. (a) Medical assistance shall include surgical benefits for
emergency or urgent surgery for the alleviation of severe pain, for
immediate diagnosis or treatment of conditions which threaten disability
or death if not promptly diagnosed or treated.
(b) Medical assistance shall include surgical benefits for certain
surgical procedures which meet standards for surgical intervention, as
established by the state commissioner of health on the basis of
medically indicated risk factors, and medically necessary surgery where
delay in surgical intervention would substantially increase the medical
risk associated with such surgical intervention.
(c) Medical assistance shall include surgical benefits for other
deferrable surgical procedures specified by the state commissioner of
health, based on the likelihood that deferral of such procedures for six
months or more may jeopardize life or essential function, or cause
severe pain; provided, however, such deferrable surgical procedures
shall be included in the case of in-patient surgery only when a second
written opinion is obtained from a physician, or as otherwise
prescribed, in accordance with regulations established by the state
commissioner of health, that such surgery should not be deferred.
(d) Medical assistance shall include a maximum of one patient day of
pre-operative hospital care for surgery authorized by paragraphs (b) or
(c) of this subdivision; provided, however, that with respect to
specific surgical procedures which the state commissioner of health has
identified as requiring more than one patient day of pre-operative care,
medical assistance shall include such longer maximum period of
pre-operative care as such commissioner has identified as necessary.
(e) Medical assistance shall not include any in-patient surgical
procedures or any care, services or supplies related to such surgery
other than those authorized by this subdivision.
6. Any inconsistent provision of law notwithstanding, medical
assistance shall also include payment for medical care, services or
supplies furnished to eligible pregnant women under the prenatal care
assistance program established pursuant to title two of article
twenty-five of the public health law, to the extent that and for so long
as federal financial participation is available therefor; provided,
however, that nothing in this section shall be deemed to affect payment
for such medical care, services or supplies if federal financial
participation is not available for such care, services and supplies
solely by reason of the immigration status of the otherwise eligible
pregnant woman.
7. Medical assistance shall also include disproportionate share
payments to general hospitals under the public health law.
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