There is a newer version of the New York Consolidated Laws
2006 New York Code - Eligibility.
§ 366. Eligibility. 1. Medical assistance shall be given under this
title to a person who requires such assistance and who (a) either (1)
meets the eligibility requirements of the safety net program as it
existed on the first day of November, nineteen hundred ninety-seven
without regard to the requirements of title nine-B of this article;
provided, however, that an otherwise eligible person who is subject to a
sanction pursuant to section three hundred forty-two of this chapter
shall remain eligible for medical assistance; or
(2) is receiving or is eligible to receive federal supplemental
security income payments and/or additional state payments, so long as
there is in effect an agreement between the state and the secretary of
health, education and welfare, pursuant to section three hundred
sixty-three-b of this title, for the federal determination of
eligibility of aged, blind and disabled persons for medical assistance,
and so long as such secretary requires, as a condition of entering into
such agreement, that such person be eligible for medical assistance; or
(3) is a child under the age of twenty-one years receiving care (A)
away from his own home in accordance with title two of article six of
this chapter; (B) during the initial thirty days of placement with the
division for youth pursuant to section 353.3 of the family court act;
(C) in an authorized agency when placed pursuant to section seven
hundred fifty-six or 353.3 of the family court act; or (D) in residence
at a division foster family home or a division contract home, and has
not, according to the criteria promulgated by the department, sufficient
income and resources, including available support from his parents, to
meet all costs of required medical care and services available under
this title; or
(4) is receiving care, in the case of and in connection with the birth
of an out of wedlock child, in accordance with title two of article six,
and has not, according to the criteria promulgated by the department,
sufficient income and resources, including available support from
responsible relatives, to meet all costs of required medical care and
services available under this title; or
(5) although not receiving public assistance or care for his or her
maintenance under other provisions of this chapter, has not, according
to the criteria and standards established by this article or by action
of the department, sufficient income and resources, including available
support from responsible relatives, to meet all the costs of medical
care and services available under this title, and is (i) under the age
of twenty-one years, or sixty-five years of age or older, or certified
blind or certified disabled or (ii) a spouse of a cash public assistance
recipient living with him or her and essential or necessary to his or
her welfare and whose needs are taken into account in determining the
amount of his or her cash payment or (iii) for reasons other than income
or resources: (A) is eligible for federal supplemental security income
benefits and/or additional state payments, or (B) would meet the
eligibility requirements of the aid to dependent children program as it
existed on the sixteenth day of July, nineteen hundred ninety-six; or
(6) is a resident of a home for adults operated by a social services
district or a residential care center for adults or community residence
operated or certified by the office of mental health, and has not,
according to criteria promulgated by the department consistent with this
title, sufficient income and resources, including available support from
responsible relatives, to meet all the costs of required medical care
and services available under this title; or
(7) is a person at least twenty-one years of age but under the age of
sixty-five who is not eligible for medical assistance pursuant to
subparagraph eight or nine of this paragraph (i) who is the parent of a
dependent child under the age of twenty-one and (ii) who lives with such
child and (iii) whose net income, without deducting the amount of any
incurred medical expenses, do not exceed the net income exemptions set
forth in subparagraph seven of paragraph (a) of subdivision two of this
section; or
(8) is a member of a family which contains a dependent child living
with a caretaker relative, which has net available income not in excess
of the income standards of the family assistance program as it existed
on the first day of November, nineteen hundred ninety-seven, and which
has net available resources not in excess of one thousand dollars; for
purposes of this subparagraph, the net available income and resources of
a family shall be determined using the methodology of the family
assistance program as it exists on the first day of November, nineteen
hundred ninety-seven, except that (i) there shall be disregarded an
additional amount of resources equal to the difference between the
resource standard of the family assistance program as it existed on the
first day of November, nineteen hundred ninety-seven and one thousand
dollars and (ii) no part of the methodology of the family assistance
program will be used which is more restrictive than the methodology of
the aid to dependent children program as it existed on the sixteenth day
of July, nineteen hundred ninety-six for purposes of this paragraph, the
term dependent child means a person under twenty-one years of age who is
deprived of parental support or care by reason of the death, continued
absence, or physical or mental incapacity of a parent, or by reason of
the unemployment of the parent, as defined by the department of health;
or
(9) is a member of a family which contains a child under twenty-one
years of age, which meets the financial eligibility requirements for
medical assistance pursuant to subparagraph eight of this paragraph, and
which is ineligible for such assistance because no child in the family
meets the definition of a dependent child or is a pregnant woman who
meets the eligibility requirements for medical assistance pursuant to
subparagraph eight of this paragraph and who is ineligible because no
dependent child resides with her; or
(10) is a child who is under twenty-one years of age, who is not
living with a caretaker relative, who has net available income not in
excess of the income standards of the family assistance program as it
existed on the first day of November, nineteen hundred ninety-seven, and
who has net available resources not in excess of one thousand dollars;
for purposes of this subparagraph, the child's net available income and
resources shall be determined using the methodology of the family
assistance program as it existed on the first day of November, nineteen
hundred ninety-seven, except that (i) there shall be disregarded an
additional amount of resources equal to the difference between the
applicable resource standard of the family assistance program as it
exists on the first day of November, nineteen hundred ninety-seven and
one thousand dollars and (ii) no part of the methodology of the family
assistance program will be used which is more restrictive than the
methodology of the aid to dependent children program as it existed on
the sixteenth day of July, nineteen hundred ninety-six; or
(11) for purposes of receiving family planning services eligible for
reimbursement by the federal government at a rate of ninety percent, is
not otherwise eligible for medical assistance and whose income is two
hundred percent or less of the comparable federal income official
poverty line (as defined and annually revised by the United States
department of health and human services). The commissioner of health
shall submit whatever waiver applications as may be necessary to receive
federal financial participation for services provided under this
subparagraph and the provisions of this subparagraph shall be effective
if and so long as such federal financial participation shall be
available; or
(12) is a disabled person at least sixteen years of age, but under the
age of sixty-five, who: would be eligible for benefits under the
supplemental security income program but for earnings in excess of the
allowable limit; has net available income that does not exceed two
hundred fifty percent of the applicable federal income official poverty
line, as defined and updated by the United States department of health
and human services, for a one-person or two-person household, as defined
by the commissioner in regulation; has household resources, as defined
in paragraph (e) of subdivision two of section three hundred sixty-six-c
of this title, that do not exceed ten thousand dollars; and contributes
to the cost of medical assistance provided pursuant to this subparagraph
in accordance with subdivision twelve of section three hundred
sixty-seven-a of this title; for purposes of this subparagraph, disabled
means having a medically determinable impairment of sufficient severity
and duration to qualify for benefits under section
1902(a)(10)(A)(ii)(xv) of the social security act; or
(13) is a person at least sixteen years of age, but under the age of
sixty-five, who: is employed; ceases to be in receipt of medical
assistance under subparagraph twelve of this paragraph because the
person, by reason of medical improvement, is determined at the time of a
regularly scheduled continuing disability review to no longer be
eligible for supplemental security income program benefits or disability
insurance benefits under the social security act; continues to have a
severe medically determinable impairment, to be determined in accordance
with applicable federal regulations; and contributes to the cost of
medical assistance provided pursuant to this subparagraph in accordance
with subdivision twelve of section three hundred sixty-seven-a of this
title; for purposes of this subparagraph, a person is considered to be
employed if the person is earning at least the applicable minimum wage
under section six of the federal fair labor standards act and working at
least forty hours per month; and
(b) is a resident of the state, or, while temporarily in the state,
requires immediate medical care which is not otherwise available,
provided that such person did not enter the state for the purpose of
obtaining such medical care; and
(c) except as provided in subparagraph six of paragraph (a) of this
subdivision, is not an inmate or patient in an institution or facility
wherein medical assistance for needy persons may not be provided in
accordance with applicable federal or state requirements; and
(d) is not a patient in a public institution operated primarily for
the treatment of tuberculosis or care of the mentally disabled, except
as follows: (1) is sixty-five years of age or older and is a patient in
any such institution; or (2) is under twenty-one years of age and is
receiving in-patient psychiatric services in a public institution
operated primarily for the care of the mentally disabled; or (3) is a
patient in a public institution operated primarily for the care of the
mentally retarded and is receiving medical care or treatment in that
part of such institution that has been approved pursuant to law as a
hospital or nursing home; or (4) if a patient in an institution operated
by the state department of mental hygiene, is under care in a hospital
while on release from such institution for the purpose of receiving care
in such hospital; or (5) is a person residing in a community residence
or a residential care center for adults; and
No person who is otherwise eligible for medical assistance shall lose
eligibility for such assistance as a result of the imposition of a
sanction pursuant to section three hundred forty-two of this chapter.
2. (a) The following income and resources shall be exempt and shall
not be taken into consideration in determining a person's eligibility
for medical care, services and supplies available under this title:
* (1) a homestead which is essential and appropriate to the needs of
the household;
* NB Effective until July 1, 2006
* NB Effective until commissioner receives approvals under federal law
and regulation for following amendment
* (1) (i) for applications for medical assistance filed on or before
December thirty-first, two thousand five, a homestead which is essential
and appropriate to the needs of the household;
(ii) for applications for medical assistance filed on or after January
first, two thousand six, a homestead which is essential and appropriate
to the needs of the household; provided, however, that in determining
eligibility of an individual for medical assistance for nursing facility
services, the individual shall not be eligible for such assistance if
the individual's equity interest in the homestead exceeds seven hundred
fifty thousand dollars; provided further, that the dollar amount
specified in this clause shall be increased, beginning with the year two
thousand eleven, from year to year, based on the percentage increase in
the consumer price index for all urban consumers, rounded to the nearest
one thousand dollars. Nothing in this clause shall be construed as
preventing an individual from using a reverse mortgage or home equity
loan to reduce the individual's total equity interest in the homestead.
The home equity limitation established by this clause shall be waived in
the case of a demonstrated hardship, as determined pursuant to criteria
established by the Secretary of Health and Human Services. The home
equity limitation shall not apply if one or more of the following
persons is lawfully residing in the individual's homestead at the time
of application for medical assistance: (A) the spouse of the individual;
or (B) the individual's child who is under the age of twenty-one, or is
blind or permanently or totally disabled.
* NB Effective July 1, 2006
* NB Not effective unless commissioner receives approvals under
federal law and regulation
(2) essential personal property;
(3) a burial fund, to the extent allowed as an exempt resource under
the cash assistance program to which the applicant is most closely
related;
(4) savings in amounts equal to at least one-half of the income amount
permitted under subparagraph seven of this paragraph, provided, however,
that the amounts for one and two person households shall not be less
than the amounts permitted to be retained by households of the same size
in order to qualify for benefits under the federal supplemental security
income program;
(5) such income as is disregarded or exempt under the cash assistance
program to which the applicant is most closely related for purposes of
this subparagraph, cash assistance program means either the aid to
dependent children program as it existed on the sixteenth day of July,
nineteen hundred ninety-six, or the supplemental security income
program;
(6) health insurance premiums;
(7) income in an amount set forth in the following schedule and
provisions, provided, however, that the amount of such annual income for
any household may not exceed one hundred thirty-three and one-third
percent of the highest income standard used to determine eligibility
under subparagraph eight of paragraph (a) of subdivision one of this
section for a household of the same size:
Annual net income - Number of family members in the medical assistance
household, as defined in regulations by the commissioner consistent with
federal regulations under title XIX of the federal social security act.
Three Four Five Six Seven Eight
$8,500 $10,200 $11,900 $13,600 $15,300 $17,000
The amounts for one and two person households and families shall be
equal to twelve times the standard of monthly need for determining
eligibility for and the amount of additional state payments for aged,
blind and disabled persons pursuant to section two hundred nine of this
chapter rounded up to the next highest one hundred dollars for eligible
individuals and couples living alone, respectively, and, for households
of three or more the above schedule shall be adjusted upward if
necessary to maintain at least a one hundred dollar differential among
household and family sizes and increased by seventeen hundred dollars
for each member of a family in excess of eight.
No other income or resources, including federal old-age, survivors and
disability insurance, state disability insurance or other payroll
deductions, whether mandatory or optional, shall be exempt and all other
income and resources shall be taken into consideration and required to
be applied toward the payment or partial payment of the cost of medical
care and services available under this title, to the extent permitted by
federal law.
(9) Subject to subparagraph eight, the department, upon the
application of a local social services district, after passage of a
resolution by the local legislative body authorizing such application,
may adjust the income exemption based upon the variations between cost
of shelter in urban areas and rural areas in accordance with standards
prescribed by the United States secretary of health, education and
welfare.
(10) (i) A person who is receiving or is eligible to receive federal
supplemental security income payments and/or additional state payments
is entitled to a personal needs allowance as follows:
(A) for the personal expenses of a resident of a residential health
care facility, as defined by section twenty-eight hundred one of the
public health law, the amount of fifty-five dollars per month;
(B) for the personal expenses of a resident of an intermediate care
facility operated or licensed by the office of mental retardation and
developmental disabilities or a patient of a hospital operated by the
office of mental health, as defined by subdivision ten of section 1.03
of the mental hygiene law, the amount of thirty-five dollars per month.
(ii) A person who neither receives nor is eligible to receive federal
supplemental security income payments and/or additional state payments
is entitled to a personal needs allowance as follows:
(A) for the personal expenses of a resident of a residential health
care facility, as defined by section twenty-eight hundred one of the
public health law, the amount of fifty dollars per month;
(B) for the personal expenses of a resident of an intermediate care
facility operated or licensed by the office of mental retardation and
developmental disabilities or a patient of a hospital operated by the
office of mental health, as defined by subdivision ten of section 1.03
of the mental hygiene law, the amount of thirty-five dollars per month.
(iii) Notwithstanding the provisions of clauses (i) and (ii) of this
subparagraph, the personal needs allowance for a person who is a veteran
having neither a spouse nor a child, or a surviving spouse of a veteran
having no child, who receives a reduced pension from the federal
veterans administration, and who is a resident of a nursing facility, as
defined in section 1919 of the federal social security act, shall be
equal to such reduced monthly pension but shall not exceed ninety
dollars per month.
* (b) (1) In establishing standards for determining eligibility for
and amount of such assistance, the department shall take into account
only such income and resources, in accordance with federal requirements,
as are available to the applicant or recipient and as would not be
required to be disregarded or set aside for future needs, and there
shall be a reasonable evaluation of any such income or resources. There
shall not be taken into consideration the financial responsibility of
any individual for any applicant or recipient of assistance under this
title unless such applicant or recipient is such individual's spouse or
such individual's child who is under twenty-one years of age. In
determining the eligibility of a child who is categorically eligible as
blind or disabled, as determined under regulations prescribed by the
social security act for medical assistance, the income and resources of
parents or spouses of parents are not considered available to that child
if she/he does not regularly share the common household even if the
child returns to the common household for periodic visits. In the
application of standards of eligibility with respect to income, costs
incurred for medical care, whether in the form of insurance premiums or
otherwise, shall be taken into account. Any person who is eligible for,
or reasonably appears to meet the criteria of eligibility for, benefits
under title XVIII of the federal social security act shall be required
to apply for and fully utilize such benefits in accordance with this
chapter.
(2) (a) Notwithstanding any inconsistent provision of this chapter or
any other law to the contrary, upon the request of the social services
district the commissioner shall, subject to the approval of the director
of the budget and the procurement of the applicable federal waiver,
authorize demonstration projects in up to five social services
districts, or portions thereof, for the purpose of testing the
feasibility of utilizing a special medical assistance income eligibility
standard for certain persons in general hospitals on alternate care
status who have been determined medically eligible for care in the
community, in order to ease the financial burden of the legally
responsible relatives. For any person sixty-five years of age or older
residing in such social services districts, who is in a general hospital
on alternate care status awaiting placement in a nursing home or
intermediate care facility, as to whom it has been determined by the
social services district that such person can be sustained in the
community with in-home services at a cost not exceeding seventy-five
percent of the average cost of care in a nursing home or intermediate
care facility, and who meets such other criteria as the commissioner may
establish, the social services district may, where it is beneficial to
the applicant and legally responsible relatives, make a separate
eligibility determination for such person, by adding the income of such
person and support considered available from the legally responsible
relative determined in accordance with regulations of the department,
and comparing this sum to the medical assistance income exemption level
for a household of one.
(b) In addition to the authorization provided for in clause (a), the
commissioner shall, upon request of a social services district,
authorize one social services district, or a portion thereof, to use the
special medical assistance income eligibility standard established in
clause (a) for persons: who are sixty-five years of age or older in
general hospitals or in the community and who are medically eligible for
placement in a nursing home or intermediate care facility; and who it
has been determined by the social services district can be sustained in
the community with in-home services at a cost not to exceed the average
cost of care in a nursing home or intermediate care facility.
(c) No provision of this subparagraph shall be construed so as to deny
any benefit to a person otherwise eligible for medical assistance in
accordance with this chapter.
(d) Resource eligibility shall be established in accordance with the
requirements of paragraph (a) of this subdivision.
(e) This subparagraph shall be effective if, and as long as, federal
financial participation is available.
* NB Expired March 31, 1988
(b) (1) In establishing standards for determining eligibility for and
amount of such assistance, the department shall take into account only
such income and resources, in accordance with federal requirements, as
are available to the applicant or recipient and as would not be required
to be disregarded or set aside for future needs, and there shall be a
reasonable evaluation of any such income or resources. The department
shall not consider the availability of an option for an accelerated
payment of death benefits or special surrender value pursuant to
paragraph one of subsection (a) of section one thousand one hundred
thirteen of the insurance law, or an option to enter into a viatical
settlement pursuant to the provisions of article seventy-eight of the
insurance law, as an available resource in determining eligibility for
an amount of such assistance, provided, however, that the payment of
such benefits shall be considered in determining eligibility for and
amount of such assistance. There shall not be taken into consideration
the financial responsibility of any individual for any applicant or
recipient of assistance under this title unless such applicant or
recipient is such individual's spouse or such individual's child who is
under twenty-one years of age. In determining the eligibility of a child
who is categorically eligible as blind or disabled, as determined under
regulations prescribed by the social security act for medical
assistance, the income and resources of parents or spouses of parents
are not considered available to that child if she/he does not regularly
share the common household even if the child returns to the common
household for periodic visits. In the application of standards of
eligibility with respect to income, costs incurred for medical care,
whether in the form of insurance premiums or otherwise, shall be taken
into account. Any person who is eligible for, or reasonably appears to
meet the criteria of eligibility for, benefits under title XVIII of the
federal social security act shall be required to apply for and fully
utilize such benefits in accordance with this chapter.
(2) In evaluating the income and resources available to an applicant
for or recipient of medical assistance, for purposes of determining
eligibility for and the amount of such assistance, the department must
consider assets held in or paid from trusts created by such applicant or
recipient, as determined pursuant to the regulations of the department,
in accordance with the provisions of this subparagraph.
(i) In the case of a revocable trust created by an applicant or
recipient, as determined pursuant to regulations of the department: the
trust corpus must be considered to be an available resource; payments
made from the trust to or for the benefit of such applicant or recipient
must be considered to be available income; and any other payments from
the trust must be considered to be assets disposed of by such applicant
or recipient for purposes of paragraph (d) of subdivision five of this
section.
(ii) In the case of an irrevocable trust created by an applicant or
recipient, as determined pursuant to regulations of the department: any
portion of the trust corpus, and of the income generated by the trust
corpus, from which no payment can under any circumstances be made to
such applicant or recipient must be considered, as of the date of
establishment of the trust, or, if later, the date on which payment to
the applicant or recipient is foreclosed, to be assets disposed of by
such applicant or recipient for purposes of paragraph (d) of subdivision
five of this section; any portion of the trust corpus, and of the income
generated by the trust corpus, from which payment could be made to or
for the benefit of such applicant or recipient must be considered to be
an available resource; payments made from the trust to or for the
benefit of such applicant or recipient must be considered to be
available income; and any other payments from the trust must be
considered to be assets disposed of by such applicant or recipient for
purposes of paragraph (d) of subdivision five of this section.
(iii) Notwithstanding the provisions of clauses (i) and (ii) of this
subparagraph, in the case of an applicant or recipient who is disabled,
as such term is defined in section 1614(a)(3) of the federal social
security act, the department must not consider as available income or
resources the corpus or income of the following trusts which comply with
the provisions of the regulations authorized by clause (iv) of this
subparagraph: (A) a trust containing the assets of such a disabled
individual which was established for the benefit of the disabled
individual while such individual was under sixty-five years of age by a
parent, grandparent, legal guardian, or court of competent jurisdiction,
if upon the death of such individual the state will receive all amounts
remaining in the trust up to the total value of all medical assistance
paid on behalf of such individual; (B) and a trust containing the assets
of such a disabled individual established and managed by a non-profit
association which maintains separate accounts for the benefit of
disabled individuals, but, for purposes of investment and management of
trust funds, pools the accounts, provided that accounts in the trust
fund are established solely for the benefit of individuals who are
disabled as such term is defined in section 1614(a)(3) of the federal
social security act by such disabled individual, a parent, grandparent,
legal guardian, or court of competent jurisdiction, and to the extent
that amounts remaining in the individual's account are not retained by
the trust upon the death of the individual, the state will receive all
such remaining amounts up to the total value of all medical assistance
paid on behalf of such individual. Notwithstanding any law to the
contrary, a not-for-profit corporation may, in furtherance of and as an
adjunct to its corporate purposes, act as trustee of a trust for
persons with disabilities established pursuant to this subclause,
provided that a trust company, as defined in subdivision seven of
section one hundred-c of the banking law, acts as co-trustee.
(iv) The department shall promulgate such regulations as may be
necessary to carry out the provisions of this subparagraph. Such
regulations shall include provisions for: assuring the fulfillment of
fiduciary obligations of the trustee with respect to the remainder
interest of the department or state; monitoring pooled trusts; applying
this subdivision to legal instruments and other devices similar to
trusts, in accordance with applicable federal rules and regulations; and
establishing procedures under which the application of this subdivision
will be waived with respect to an applicant or recipient who
demonstrates that such application would work an undue hardship on him
or her, in accordance with standards specified by the secretary of the
federal department of health and human services. Such regulations may
require: notification of the department of the creation or funding of
such a trust for the benefit of an applicant for or recipient of medical
assistance; notification of the department of the death of a beneficiary
of such a trust who is a current or former recipient of medical
assistance; in the case of a trust, the corpus of which exceeds one
hundred thousand dollars, notification of the department of transactions
tending to substantially deplete the trust corpus; notification of the
department of any transactions involving transfers from the trust corpus
for less than fair market value; the bonding of the trustee when the
assets of such a trust equal or exceed one million dollars, unless a
court of competent jurisdiction waives such requirement; and the bonding
of the trustee when the assets of such a trust are less than one million
dollars, upon order of a court of competent jurisdiction. The
department, together with the banking department, shall promulgate
regulations governing the establishment, management and monitoring of
trusts established pursuant to subclause (B) of clause (iii) of this
subparagraph in which a not-for-profit corporation and a trust company
serve as co-trustees.
(v) Notwithstanding any acts, omissions or failures to act of a
trustee of a trust which the department or a local social services
official has determined complies with the provisions of clause (iii) and
the regulations authorized by clause (iv) of this subparagraph, the
department must not consider the corpus or income of any such trust as
available income or resources of the applicant or recipient who is
disabled, as such term is defined in section 1614(a)(3) of the federal
social security act. The department's remedy for redress of any acts,
omissions or failures to act by such a trustee which acts, omissions or
failures are considered by the department to be inconsistent with the
terms of the trust, contrary to applicable laws and regulations of the
department, or contrary to the fiduciary obligations of the trustee
shall be the commencement of an action or proceeding under subdivision
one of section sixty-three of the executive law to safeguard or enforce
the state's remainder interest in the trust, or such other action or
proceeding as may be lawful and appropriate as to assure compliance by
the trustee or to safeguard and enforce the state's remainder interest
in the trust.
(3) (a) Social services officials shall authorize medical assistance
for persons who would be eligible for such assistance except that their
incomes exceed the applicable medical assistance income eligibility
standard, which is determined according to paragraph (a) of subdivision
two of this section, to become eligible for medical assistance by paying
to their social services districts the amount by which their incomes
exceed such income eligibility levels.
(b) Social services districts shall safeguard, by deposit in special
accounts, any amounts paid to them by such recipients of medical
assistance benefits. The amount of any medical assistance payments made
to providers of medical assistance on behalf of such recipients, shall
be charged against the amount in recipients' accounts. Districts shall,
in accordance with their approved plans, periodically refund the
amounts, if any, by which the amounts in recipients' accounts exceed the
amounts of any medical assistance payments made on their behalf.
Districts shall report to the department amounts in recipients' accounts
that are equal to the amount of medical assistance payments made on
recipients' behalf.
(c) Eligibility under this subparagraph shall be authorized only in
accordance with plans submitted by social services districts and
approved by the commissioner. Plans must be submitted by social services
districts to the commissioner no later than February first, nineteen
hundred ninety-six. The commissioner shall only approve plans that
include a detailed description of how the district will administer the
program, enroll recipients, safeguard monies in recipients' accounts,
reconcile payments made to providers of medical assistance services with
account balances and refund the amounts by which recipients' account
funds exceed the amounts paid to providers on their behalf.
(d) By January first, nineteen hundred ninety-five, the department
shall submit to the governor and the legislature a report evaluating the
demonstration programs effect on enrollees' access to medical assistance
care and services and any other subjects the commissioner deems
relevant.
(e) Notwithstanding any other provision of law, administrative
expenditures incurred by local social services districts in relation to
this section shall be reimbursable as provided in subdivision one of
section three hundred sixty-eight-a of this article.
3. (a) Medical assistance shall be furnished to applicants in cases
where, although such applicant has a responsible relative with
sufficient income and resources to provide medical assistance as
determined by the regulations of the department, the income and
resources of the responsible relative are not available to such
applicant because of the absence of such relative or the refusal or
failure of such relative to provide the necessary care and assistance.
In such cases, however, the furnishing of such assistance shall create
an implied contract with such relative, and the cost thereof may be
recovered from such relative in accordance with title six of article
three and other applicable provisions of law.
(b) (i) When a legally responsible relative agrees or is ordered by a
court or administrative tribunal of competent jurisdiction to provide
health insurance or other medical care coverage for his or her
dependents or other persons, and such dependents or other persons are
applicants for, recipients of or otherwise entitled to receive medical
assistance pursuant to this title, the department and social services
officials shall be subrogated to any rights that the responsible
relative may have to obtain reimbursement from a third party for the
costs of medical care for such dependents or persons.
(ii) Upon receipt of an application, or upon a determination of
eligibility, for assistance pursuant to this title, the department and
social services officials shall be deemed to have furnished assistance
to any such dependent or person entitled to receive medical assistance
pursuant to this title and shall be subrogated to any rights such person
may have to third party reimbursement as provided in paragraph (b) of
subdivision two of section three hundred sixty-seven-a of this title.
(iii) For purposes of determining whether a person is legally
responsible for a person receiving assistance under this title, the
following shall be dispositive: a copy of a support order issued
pursuant to section four hundred sixteen or five hundred forty-five of
the family court act or section two hundred thirty-six or two hundred
forty of the domestic relations law; an order described in paragraph (h)
of subdivision four of this section; an order of a court or
administrative tribunal of competent jurisdiction pursuant to the
provisions of this subdivision; or any other order of a court or
administrative tribunal of competent jurisdiction subject to the
provisions of this subdivision. If a notice of subrogation as described
in paragraph (b) of subdivision two of section three hundred
sixty-seven-a of this title is accompanied by dispositive documentation
that a person is legally responsible for a person receiving assistance
under this title, any third party liable for reimbursement for the costs
of medical care shall accord the department or any social services
official the rights of and benefits available to the responsible
relative that pertain to the provision of medical care to any persons
entitled to medical assistance pursuant to this title for whom the
relative is legally responsible.
(c) The provisions of this subdivision shall not be construed to
diminish the authority of a social services official to bring a
proceeding pursuant to the provisions of this chapter or other
provisions of law (1) to compel any responsible relative to contribute
to the support of any person receiving or liable to become in need of
medical assistance, or (2) to recover from a recipient or a responsible
relative the cost of medical assistance not correctly paid.
4. (a) (i) Notwithstanding any other provision of law, each family
which was eligible for medical assistance pursuant to subparagraph eight
or nine of paragraph (a) of subdivision one of this section in at least
three of the six months immediately preceding the month in which such
family became ineligible for such assistance because of hours of, or
income from, employment of the caretaker relative, or because of loss of
entitlement to the earnings disregard under subparagraph (iii) of
paragraph (a) of subdivision eight of section one hundred thirty-one-a
of this chapter shall, while such family includes a dependent child,
remain eligible for medical assistance for six calendar months
immediately following the month in which such family would otherwise be
determined to be ineligible for medical assistance pursuant to the
provisions of this title and the regulations of the department governing
income and resource limitations relating to eligibility determinations
for families described in subparagraph eight of paragraph (a) of
subdivision one of this section.
(ii) Each family which received medical assistance for the entire six
month period under subparagraph (i) of this paragraph and complied with
the department's reporting requirements for such initial six month
period shall be offered the option of extending such eligibility for an
additional six calendar months if and for so long as such family
includes a dependent child and meets the income requirements in
subparagraph (ii) of paragraph (b) of this subdivision.
(b) (i) Upon giving notice of termination of medical assistance
provided pursuant to subparagraph eight or nine of paragraph (a) of
subdivision one of this section, the department shall notify each such
family of its rights to extended benefits under paragraph (a) of this
subdivision and describe any reporting requirements and the conditions
under which such extension may be terminated. The department shall also
provide subsequent notices of the option to extend coverage pursuant to
paragraph (a) of this subdivision in the third and sixth months of the
initial six month extended coverage period and notices of the reporting
requirements under such paragraph in each of the third and sixth months
of the initial six month extended coverage period and in the third month
of the additional extended coverage period.
(ii) The department shall promulgate regulations implementing the
requirements of this paragraph and paragraph (a) of this subdivision
relating to the conditions under which initial extended coverage and
additional extended coverage hereunder may be terminated, the scope of
coverage, the reporting requirements and the conditions under which
coverage may be extended pending a redetermination of eligibility. Such
regulations shall, at a minimum, provide for: (A) termination of such
coverage at the close of the first month in which the family ceases to
include a dependent child and at the close of the first or fourth month
of the additional extended coverage period if the family fails to
report, as required by the regulations, or the caretaker relative had no
earnings in one or more of the previous three months unless such lack of
earnings was for good cause, or the family's average gross monthly
earnings, less necessary work related child care costs of the caretaker
relative, during the preceding three months was greater than one hundred
eighty-five percent of the federal income official poverty line
applicable to the family's size; (B) notice of termination prior to the
effective date of any terminations; (C) quarterly reporting of income
and child care costs during the initial and additional extended coverage
periods; (D) coverage under employee health plans and health maintenance
organizations; and (E) disqualification of persons for extended coverage
benefits under this paragraph for fraud.
(c) Notwithstanding any inconsistent provision of law, each family
which was eligible for medical assistance pursuant to subparagraph eight
of paragraph (a) of subdivision one of this section in at least three of
the six months immediately preceding the month in which such family
became ineligible for such assistance as a result, wholly or partly, of
the collection or increased collection of child or spousal support
pursuant to part D of title IV of the federal social security act,
shall, for purposes of medical assistance eligibility, be considered to
be eligible for medical assistance pursuant to subparagraph eight of
paragraph (a) of subdivision one of this section for an additional four
calendar months beginning with the month ineligibility for such
assistance begins.
(d) Notwithstanding any other provision of law, in the absence of an
agreement as set forth in subparagraph two of paragraph (a) of
subdivision one of this section, an aged, blind or disabled person who
is eligible for federal supplemental security income payments and/or
additional state payments shall be eligible for medical assistance under
this title pursuant to standards which were in effect on January first,
nineteen hundred seventy-two. For the purposes of this paragraph, such
individual shall be deemed eligible if, in addition to meeting other
eligibility requirements of this title unrelated to income, his income
as determined by excluding federal supplemental security payments and
additional state payments to such person and his expenditures for
medical care and services deductible for income tax purposes, as
determined by the department is not in excess of the income standard for
determining eligibility for medical assistance under the provisions of
this title which were in effect on January first, nineteen hundred
seventy-two.
(e) Notwithstanding any other provision of law, any person who, as the
spouse of a recipient of old age assistance, assistance to the blind or
aid to the disabled, was eligible for medical assistance for December,
nineteen hundred seventy-three, pursuant to clause (ii) of subparagraph
four of paragraph (a) of subdivision one of this section, shall continue
to be eligible therefor so long as (1) his spouse continues to meet the
standards of eligibility for old age assistance, assistance to the blind
or aid to the disabled, pursuant to this chapter, in effect for
December, nineteen hundred seventy-three, and (2) such person continues
to be the spouse of such recipient and continues to meet the other
criteria set forth in such subparagraph four.
(f) Notwithstanding any other provision of law, any person who, for
all or any part of December, nineteen hundred seventy-three, was an
inpatient in an institution or facility wherein medical assistance may
be provided in accordance with applicable federal or state requirements
and, with respect to standards of eligibility, pursuant to this chapter,
in effect for such month, (1) would, except for his being such an
inpatient, have been eligible to receive old age assistance, aid to the
blind or aid to the disabled, or (2) was, on the basis of his need for
care in such institution or facility, considered to be eligible for such
aid or assistance for the purpose of determining eligibility for medical
assistance under this title, shall continue to be eligible for
assistance under this title so long as he continues to be an inpatient
in need of care in such institution or facility, and he continues to
meet the criteria set forth in subparagraphs one and two of this
paragraph.
(g) Notwithstanding any other provision of law, any blind or disabled
person who was eligible for medical assistance for December, nineteen
hundred seventy-three pursuant to clause (iii) of subparagraph four of
paragraph (a) of subdivision one of this section, shall continue to be
eligible therefor, so long as he continues to meet the criteria for
blindness or disability pursuant to this chapter in effect for such
month for the purpose of determining eligibility for assistance to the
blind or aid to the disabled.
(h) (1) Any inconsistent provision of this chapter or other law
notwithstanding, an applicant for or a recipient of assistance under
this title shall be required, as a condition of initial or continued
eligibility for such assistance, to assign to the appropriate social
services official or the department, in accordance with department
regulations: (i) any benefits which are available to him or her
individually from any third party for care or other medical benefits
available under this title and which are otherwise assignable pursuant
to a contract or any agreement with such third party; or (ii) any
rights, of the individual or of any other person who is eligible for
medical assistance under this title and on whose behalf the individual
has the legal authority to execute an assignment of such rights, to
support specified as support for the purpose of medical care by a court
or administrative order.
(2) Such applicant or recipient shall also be required, as a
condition of initial or continued eligibility for such assistance, to
cooperate with the appropriate social services official or the
department in establishing paternity or in establishing, modifying, or
enforcing a support order with respect to a child of the applicant or
recipient; provided, however, that nothing herein contained shall be
construed to require a payment under this title for care or services,
the cost of which may be met in whole or in part by a third party.
Notwithstanding the foregoing, a social services official shall not
require the cooperation as set forth herein of an applicant or recipient
with respect to whom such official has determined that such actions
would be detrimental to the best interest of the child, applicant, or
recipient, or with respect to pregnant women during pregnancy and during
the sixty-day period beginning on the last day of pregnancy, in
accordance with procedures and criteria established by regulations of
the department consistent with federal law.
(i) Any inconsistent provision of law notwithstanding and to the
extent permissible under federal law any applicant for or recipient of
medical assistance pursuant to the provisions of subparagraph three,
four or five of paragraph (a) of subdivision one of this section, except
those persons receiving benefits pursuant to Title XVI of the federal
social security act, who is or becomes employed and whose employer
provides group health insurance benefits, including benefits for a
spouse and dependent children of such applicant or recipient, shall
apply for and utilize such benefits as a condition of eligibility for
medical assistance. Such applicant or recipient shall also utilize such
benefits provided by former employers as long as such benefits are
available. The provisions of this paragraph shall apply to such
applicants upon their initial certification for medical assistance and
to such recipients upon their recertifications for such assistance
following the effective date of this paragraph. The department shall
promulgate regulations to determine the eligibility requirements of
those applicants and recipients who have more than one employer offering
group health insurance benefits.
* (j) In accordance with applicable federal requirements, to the
extent that federal financial participation is available, and subject to
the approval of the director of the budget: (1) the department is
authorized to select entities offering comprehensive health services
plans which are certified under article forty-four of the public health
law, or licensed pursuant to article forty-three of the insurance law or
otherwise authorized by law, for the purpose of continuing to provide
services to enrollees of such entities who have lost their eligibility
for medical assistance;
(2) individuals for whom federal financial participation would
otherwise be available pursuant to title XIX of the social security act
but who have lost their eligibility for medical assistance before the
end of a six month enrollment period beginning on the date of the
individual's enrollment in the entities designated pursuant to the
provisions of subparagraph one of this paragraph, shall have their
eligibility for medical assistance continued until the end of the six
month enrollment period, but only with respect to services provided to
the individual as an enrollee of the entity.
(3) The commissioner may apply for appropriate waivers under section
eleven hundred fifteen of the social security act necessary to obtain
federal financial participation for those enrollees of non-federally
qualified entities offering comprehensive health services plans.
* NB Expires March 31, 2009
* (k) Notwithstanding any inconsistent provision of law, persons who
were eligible for medical assistance pursuant to subparagraph one or
nine of paragraph (a) of subdivision one of this section and who are
participants in the entities offering comprehensive health services
plans designated pursuant to paragraph (j) of this subdivision and who
have lost their eligibility for medical assistance before the end of a
six-month period beginning on the date of the individual's enrollment in
such entities, shall have their eligibility for medical assistance
continued until the end of the six-month enrollment period, but only
with respect to services provided to the individual as an enrollee in
the entity offering a comprehensive health services plan.
* NB Expires March 31, 2009
(l) Notwithstanding any inconsistent provision of law, any child born
to a woman eligible for and receiving medical assistance on the date of
the child's birth shall be deemed to have applied for medical assistance
and to have been found eligible for such assistance on the date of such
birth and to remain eligible for such assistance for a period of one
year, so long as the child is a member of the woman's household and the
woman remains eligible for such assistance or would remain eligible for
such assistance if she were pregnant.
(m) (1) Pregnant women and infants younger than one year of age who
are not otherwise eligible for medical assistance and whose families
have incomes equal to or less than one hundred percent of the comparable
federal income official poverty line (as defined and annually revised by
the federal office of management and budget) for families of the same
size.
(2) For purposes of determining eligibility for medical assistance
under this paragraph, family income is determined by use of the same
methodology used to determine eligibility for the aid to dependent
children program as it existed on the sixteenth day of July, nineteen
hundred ninety-six and if authorized by federal law, rules or
regulations resources available to such family shall not be considered
nor required to be applied to the cost of medical care, services or
supplies available under this paragraph.
(3) (i) A pregnant woman eligible for medical assistance care and
services under this paragraph on any day of her pregnancy will continue
to be eligible for such care and services through the end of the month
in which the sixtieth day following the end of the pregnancy occurs,
without regard for any change in the income of the family that includes
the pregnant woman, even if such change otherwise would have rendered
her ineligible for medical assistance care and services.
(ii) Infants under one year of age will continue to be eligible for
in-patient care and services through the end of any in-patient stay
commenced prior to their attaining the age of one year provided,
however, that they were eligible under this paragraph upon commencement
of such stay and, but for attaining such age, would have remained
eligible therefor.
(n) (1) Infants younger than one year who are not otherwise eligible
for medical assistance and whose families have incomes equal to or less
than two hundred percent of the federal income official poverty line (as
defined and annually revised by the United States department of health
and human services) for a family of the same size as the families that
include the infants shall be eligible for medical assistance as provided
in subparagraph three of this paragraph. For purposes of this paragraph,
family income shall be determined by use of the same methodology used to
determine eligibility for the aid to dependent children program as it
existed on the sixteenth day of July, nineteen hundred ninety-six.
(2) For purposes of this paragraph, resources available to such
families shall not be considered nor required to be applied toward the
payment or part payment of the cost of medical assistance care, services
and supplies available under this paragraph.
(3) An eligible infant who is receiving medically necessary in-patient
services for which medical assistance is provided on the date the infant
attains one year, and who, but for attaining such age, would remain
eligible for medical assistance under this paragraph, shall continue to
remain eligible until the end of the stay for which in-patient services
are being furnished.
(o) (1) Pregnant women who are not otherwise eligible for medical
assistance are eligible for services provided under the prenatal care
assistance program established pursuant to title two of article
twenty-five of the public health law if the income of the family that
includes the pregnant woman does not exceed two hundred percent of the
comparable federal income official poverty line (as defined and annually
revised by the United States department of health and human services)
for families of the same size.
(2) For purposes of determining eligibility under this paragraph,
family income is determined by use of the same methodology used to
determine eligibility for the aid to dependent children program as it
existed on the sixteenth day of July, nineteen hundred ninety-six and
resources available to such family shall not be considered nor required
to be applied to the cost of medical care, services or supplies
available under this paragraph.
(3) A pregnant woman eligible for services under this paragraph on any
day of her pregnancy will continue to be eligible for such care and
services through the end of the month in which the sixtieth day
following the end of the pregnancy occurs, without regard for any change
in the income of the family that includes the pregnant woman, even if
such change otherwise would have rendered her ineligible for medical
assistance care and services.
(p) (1) Children who are at least one year of age but younger than six
years of age who are not otherwise eligible for medical assistance and
whose families have incomes equal to or less than one hundred
thirty-three percent of the federal income official poverty line (as
defined and annually revised by the federal office of management and
budget) for a family of the same size as the families that include the
children shall be eligible for medical assistance and shall remain
eligible therefor as provided in subparagraph three of this paragraph.
(2) For purposes of determining eligibility for medical assistance
under this paragraph, family income shall be determined by use of the
same methodology used to determine eligibility for the aid to dependent
children program as it existed on the sixteenth day of July, nineteen
hundred ninety-six provided, however, that costs incurred for medical or
remedial care shall not be considered and resources available to such
families shall not be considered nor required to be applied toward the
payment or part payment of the cost of medical care, services and
supplies available under this paragraph.
(3) An eligible child who is receiving medically necessary in-patient
services for which medical assistance is provided on the date the child
attains six years of age, and who, but for attaining such age, would
remain eligible for medical assistance under this paragraph, shall
continue to remain eligible until the end of the stay for which
in-patient services are being furnished.
(q) * (1) Children younger than nineteen years of age, who are not
otherwise eligible for medical assistance and whose families have
incomes equal to or less than one hundred percent of the federal income
official poverty line (as defined and updated by the United States
department of health and human services) for a family of the same size
as families that include such children shall be eligible for medical
assistance and shall remain eligible therefor, as provided in
subparagraph three of this paragraph.
* NB Effective until July 1, 2007
* (1) Children born after September thirtieth, nineteen hundred
eighty-three who are at least six years of age but younger than nineteen
years of age, who are not otherwise eligible for medical assistance and
whose families have incomes equal to or less than one hundred percent of
the federal income official poverty line (as defined and annually
revised by the federal office of management and budget) for a family of
the same size as families that include such children shall be eligible
for medical assistance and shall remain eligible therefor, as provided
in subparagraph three of this paragraph.
* NB Effective July 1, 2007
(2) For purposes of this paragraph, family income is determined by use
of the same methodology used to determine eligibility for the aid to
dependent children program as it existed on the sixteenth day of July,
nineteen hundred ninety-six provided, however, that costs incurred for
medical or remedial care shall not be taken into account in determining
eligibility.
(3) Children who are eligible for medical assistance under this
paragraph shall continue to be eligible for inpatient care and services
through the end of any inpatient stay commenced prior to their attaining
the age of nineteen years, provided, however, that they were eligible
under this paragraph upon commencement of such stay and, but for
attaining such age, would have remained eligible therefor.
(r) To the extent permitted under federal law, if, for so long as, and
to the extent that federal financial participation is available
therefor, tuberculosis-related services, including prescription drugs,
physician services, laboratory and x-ray services, clinic services,
case-management services, and such other care, services and supplies as
specified by the department in regulation, shall be given to persons not
otherwise described in this section who are infected with tuberculosis
and whose income and resources do not exceed the amounts which a person
may have and be eligible for medical assistance under this title.
* (s) Notwithstanding any inconsistent provision of law, a child under
the age of nineteen who is determined eligible for medical assistance
under the provisions of this section, shall, consistent with applicable
federal requirements, remain eligible for such assistance until the
earlier of:
(1) the last day of the month which is twelve months following the
determination or redetermination of eligibility for such assistance; or
(2) the last day of the month in which the child reaches the age of
nineteen.
* NB Expires July 1, 2007
* (t) (1) Notwithstanding the provisions of sections twenty-five
hundred ten and twenty-five hundred eleven of the public health law and
paragraph (p) of this subdivision and subject to subparagraph four of
this paragraph, children who are at least six years of age but younger
than nineteen years of age, who are not otherwise eligible for medical
assistance under paragraph (p) of this subdivision and whose families
have a net household income greater than one hundred percent and less
than or equal to one hundred thirty-three percent of the federal income
official poverty line (as defined and updated by the United States
Department of Health and Human Services) for a family of the same size
as the families that include the children shall be eligible for medical
assistance and shall remain eligible therefor as provided in
subparagraph three hereof.
(2) For the purposes of determining eligibility for medical assistance
under this paragraph, family income shall be determined in accordance
with subparagraph two of paragraph (p) of this subdivision.
(3) For the purposes of this paragraph, an eligible child who is
receiving medically necessary in-patient services for which medical
assistance is provided on the date the child attains nineteen years of
age, and who, but for attaining such age, would remain eligible for such
medical assistance under this section, shall continue to remain eligible
until the end of the stay for which in-patient services are being
furnished.
(5) The commissioner will use best efforts to obtain a waiver of
provisions of title XXI of the federal social security act from the
secretary of the federal department of health and human services under
which children who become eligible for medical assistance pursuant to
this paragraph who are enrolled in the state children's health insurance
program under sections twenty-five hundred ten and twenty-five hundred
eleven of the public health law on the day before implementation of this
paragraph under clauses (i) or (ii) of subparagraph four of this
paragraph, are allowed the option of permanently retaining their
enrollment in the state children's health insurance program or enrolling
in the medical assistance program pursuant to this paragraph, and the
commissioner is authorized to take whatever other action, if any, may be
necessary to effect this subparagraph.
(6) Notwithstanding any other provision of law to the contrary, the
provisions of subparagraphs one through three of this paragraph shall
not be implemented prior to January first, nineteen hundred ninety-nine.
* NB Expired April 1, 2005
* (u) (1) Notwithstanding the provisions of paragraph (p) of this
subdivision, children who are less than one year of age and have a net
household income less than or equal to one hundred eighty-five percent
of the federal income official poverty line (as defined and updated by
the United States Department of Health and Human Services) for a family
of the same size as the families that include the children shall be
eligible for presumptive eligibility in accordance with subdivision four
of section three hundred sixty-four-i of this title.
(2) Notwithstanding the provisions of paragraphs (p) and (t) of this
subdivision, children who are at least one year of age and less than
nineteen years and have a net household income less than or equal to one
hundred thirty-three percent of the federal income official poverty line
(as defined and updated by the United States Department of Health and
Human Services) for a family of the same size as the families that
include the children shall be eligible in accordance with subdivision
four of section three hundred sixty-four-i of this title.
(3) For the purposes of determining eligibility for medical assistance
under this paragraph, family income shall be determined in accordance
with subparagraph two of paragraph (p) of this subdivision.
(4) For the purposes of this paragraph, an eligible child who is
receiving medically necessary in-patient services for which medical
assistance is provided on the date the child attains nineteen years of
age, and who, but for attaining such age, would remain eligible for such
medical assistance under this section, shall continue to remain eligible
until the end of the stay for which in-patient services are being
furnished.
(5) Notwithstanding any other provision of law, this paragraph shall
not be implemented until paragraph (t) of this subdivision shall take
effect.
* NB Expired April 1, 2005
(v)(1) Persons who are not eligible for medical assistance under the
terms of section 1902(a)(10)(A)(i) of the federal social security act
are eligible for medical assistance coverage during the treatment of
breast or cervical cancer, subject to the provisions of this paragraph.
(2)(i) Medical assistance is available under this paragraph to persons
who are under sixty-five years of age, have been screened for breast
and/or cervical cancer under the Centers for Disease Control and
Prevention breast and cervical cancer early detection program and need
treatment for breast or cervical cancer, and are not otherwise covered
under creditable coverage as defined in the federal public health
service act; provided however that medical assistance shall be furnished
pursuant to this clause only to the extent permitted under federal law,
if, for so long as, and to the extent that federal financial
participation is available therefor.
(ii) Medical assistance is available under this paragraph to persons
who meet the requirements of clause (i) of this subparagraph but for
their age and/or gender, who have been screened for breast and/or
cervical cancer under the program described in title I-A of article
twenty-four of the public health law and need treatment for breast or
cervical cancer, and are not otherwise covered under creditable coverage
as defined in the federal public health service act; provided however
that medical assistance shall be furnished pursuant to this clause only
if and for so long as the provisions of clause (i) of this subparagraph
are in effect.
(3) Medical assistance provided to a person under this paragraph shall
be limited to the period in which such person requires treatment for
breast or cervical cancer.
(4) The commissioner of health shall promulgate such regulations as
may be necessary to carry out the provisions of this paragraph. Such
regulations shall include, but not be limited to: eligibility
requirements; a description of the medical services which are covered;
and a process for providing presumptive eligibility when a qualified
entity, as defined by the commissioner, determines on the basis of
preliminary information that a person meets the requirements for
eligibility under this paragraph.
(5) The commissioner of health shall, consistent with this title, make
any necessary amendments to the state plan for medical assistance
submitted pursuant to section three hundred sixty-three-a of this title,
in order to ensure federal financial participation in expenditures under
this paragraph. Notwithstanding any provision of law to the contrary,
the provisions of clause (i) of subparagraph two of this paragraph shall
be effective only if and for so long as federal financial participation
is available in the costs of medical assistance furnished thereunder.
(w) A woman who was pregnant while in receipt of medical assistance
who subsequently loses her eligibility for medical assistance shall have
her eligibility for medical assistance continued from the end of the
month in which the sixtieth day following the end of her pregnancy
occurs but only for Federal Title X services which shall continue for
twenty-four months therefrom, and provided further that the services are
reimbursable by the federal government at a rate of ninety percent;
provided, however, that nothing in this paragraph shall be deemed to
affect payment for such services if federal financial participation is
not available for such care, services and supplies solely by reason of
the immigration status of the otherwise eligible woman.
5. (a) In determining the initial or continuing eligibility of any
person for assistance under this title, there shall be included in the
amount of resources considered available to such person the
uncompensated value of any resource transferred prior to the date of
application for medical assistance as specified in paragraph (b) of this
subdivision, and such person shall be ineligible for such assistance for
such period or periods as specified in this subdivision.
(b) For transfers made on or after April tenth, nineteen hundred
eighty-two and prior to October first, nineteen hundred eighty-nine:
(1) a nonexempt resource shall mean any resource which if retained by
such person would not be exempt from consideration under the provisions
of subdivision two of this section;
(2) any transfer of a nonexempt resource made within twenty-four
months prior to the date of a person's application for medical
assistance shall be presumed to have been made for the purpose of
qualifying for such assistance; however, if such person furnishes
evidence to establish that the transfer was exclusively for some other
purpose, the uncompensated value shall not be considered available to
such person in determining his or her initial or continued eligibility
for medical assistance;
(3) the uncompensated value of any such resource shall be the fair
market value of such resource at the time of transfer, minus the amount
of the compensation received by the person in exchange for the resource;
(4) any person determined to have excess resources of twelve thousand
dollars or less because of the application of this paragraph shall
remain ineligible for assistance under this title for a period of
twenty-four months from the date of the transfer, or until such person
can demonstrate that he or she has incurred medical expenses after the
date of transfer in the amount of such excess above otherwise allowable
resources, whichever period is shorter;
(5) any person determined to have excess resources of more than twelve
thousand dollars because of the application of this paragraph shall
remain ineligible for assistance under this title for a period which
exceeds twenty-four months, which period shall be determined by adding
an additional month of ineligibility for each two thousand dollars in
excess of twelve thousand dollars, or until such person can demonstrate
that he or she has incurred medical expenses after the date of transfer
in the amount of such excess above otherwise allowable resources,
whichever period is shorter.
(c) For transfers made on or after October first, nineteen hundred
eighty-nine:
(1) (i) "institutionalized person" means any person who is an
in-patient in a nursing facility, or who is an in-patient in a medical
facility and is receiving a level of care provided in a nursing
facility, or who is receiving care, services or supplies pursuant to a
waiver pursuant to subsection (c) of section nineteen hundred fifteen of
the federal social security act.
(ii) "resources" includes any resources which would not be considered
exempt from consideration under the provisions of subdivision two of
this section, without regard to the exemption provided for in
subparagraph one of paragraph (a) of such subdivision.
(iii) "nursing facility" means a nursing home as defined by section
twenty-eight hundred one of the public health law.
(iv) "nursing facility services" means nursing care and health related
services provided in a nursing facility, a level of care provided in a
hospital which is equivalent to the care which is provided in a nursing
facility and care, services or supplies provided pursuant to a waiver
pursuant to subsection (c) of section nineteen hundred fifteen of the
federal social security act.
(2) the uncompensated value of a resource shall be the fair market
value of such resource at the time of transfer, minus the amount of the
compensation received in exchange for the resource.
(3) any transfer of a resource by a person or such person's spouse for
less than fair market value made within or after the thirty months
immediately preceding the date the person becomes an institutionalized
person or the date of application for medical assistance while an
institutionalized person, if later, shall render the person ineligible
for nursing facility services for a period specified in subparagraph
four of this paragraph; however, an institutionalized person shall not
be ineligible for nursing facility services solely by reason of any such
transfer to the extent that:
(i) the resource transferred was a home and title to the home was
transferred to: (A) the spouse of such person; or (B) a child of such
person who is under the age of twenty-one years or certified blind or
certified permanently and totally disabled, as defined by section two
hundred eight of this title; or (C) a sibling of such person who has an
equity interest in such home and who resided in such home for a period
of at least one year immediately before the date the person became an
institutionalized person; or (D) a son or daughter of such person who
was residing in such home for a period of at least two years immediately
before the date such person became an institutionalized person, and who
provided care to such person which permitted such person to reside at
home rather than in an institution or facility; or
(ii) the resource was transferred to or for the sole benefit of such
person's spouse, or from such person's spouse to or for the sole benefit
of such person, or to his or her child who is certified blind or
certified permanently and totally disabled; or
(iii) a satisfactory showing is made that: (A) the person or such
person's spouse intended to dispose of the resource either at fair
market value, or for other valuable consideration, or (B) the resource
was transferred exclusively for a purpose other than to qualify for
medical assistance; or
(iv) denial of eligibility would work an undue hardship, as defined by
the commissioner which definition shall include the inability of the
institutionalized person or such person's spouse to retrieve the
resource or to obtain fair market value therefor despite his or her best
efforts.
(4) Any transfer made by a person or the person's spouse under
subparagraph three of this paragraph shall cause the person to be
ineligible for nursing facility services, for services at a level of
care equivalent to that of nursing facility services for the lesser of
(i) a period of thirty months from the date of transfer, or (ii) a
period equal to the total uncompensated value of the resources so
transferred, divided by the average cost of nursing facility services to
a private patient for a given period of time at the time of application
as determined by the commissioner. For purposes of this subparagraph the
average cost of nursing facility services to a private patient for a
given period of time at the time of application shall be presumed to be
one hundred twenty percent of the average medical assistance rate of
payment as of the first day of January of each year for nursing
facilities within the region as established pursuant to paragraph (b) of
subdivision sixteen of section twenty-eight hundred seven-c of the
public health law wherein the applicant resides.
(d) For transfers made after August tenth, nineteen hundred
ninety-three:
(1) (i) "assets" means all income and resources of an individual and
of the individual's spouse, including income or resources to which the
individual or the individual's spouse is entitled but which are not
received because of action by: the individual or the individual's
spouse; a person with legal authority to act in place of or on behalf of
the individual or the individual's spouse; a person acting at the
direction or upon the request of the individual or the individual's
spouse; or by a court or administrative body with legal authority to act
in place of or on behalf of the individual or the individual's spouse or
at the direction or upon the request of the individual or the
individual's spouse.
(ii) "blind" has the same meaning given to such term in section
1614(a)(2) of the federal social social security act.
(iii) "disabled" has the same meaning given to such term in section
1614(a)(3) of the federal social security act.
(iv) "income" has the same meaning given to such term in section 1612
of the federal social security act.
(v) "resources" has the same meaning given to such term in section
1613 of the federal social security act, without regard, in the case of
an institutionalized individual, to the exclusion provided for in
subsection (a)(1) of such section.
(vi) "look-back period" means the thirty-six month period, or, in the
case of payments from a trust or portions of a trust which are treated
as assets disposed of by the individual pursuant to department
regulations, the sixty-month period, immediately preceding the date that
an institutionalized individual is both institutionalized and has
applied for medical assistance.
(vii) "institutionalized individual" means any individual who is an
in-patient in a nursing facility, including an intermediate care
facility for the mentally retarded, or who is an in-patient in a medical
facility and is receiving a level of care provided in a nursing
facility, or who is receiving care, services or supplies pursuant to a
waiver granted pursuant to subsection (c) of section 1915 of the federal
social security act.
(viii) "intermediate care facility for the mentally retarded" means a
facility certified under article sixteen of the mental hygiene law and
which has a valid agreement with the department for providing
intermediate care facility services and receiving payment therefor under
title XIX of the federal social security act.
(ix) "nursing facility" means a nursing home as defined by section
twenty-eight hundred one of the public health law and an intermediate
care facility for the mentally retarded.
(x) "nursing facility services" means nursing care and health related
services provided in a nursing facility; a level of care provided in a
hospital which is equivalent to the care which is provided in a nursing
facility; and care, services or supplies provided pursuant to a waiver
granted pursuant to subsection (c) of section 1915 of the federal social
security act.
(2) The uncompensated value of an asset is the fair market value of
such asset at the time of transfer, minus the amount of the compensation
received in exchange for the asset.
(3) In determining the medical assistance eligibility of an
institutionalized individual, any transfer of an asset by the individual
or the individual's spouse for less than fair market value made within
or after the look-back period shall render the individual ineligible for
nursing facility services for the period of time specified in
subparagraph four of this paragraph. Notwithstanding the provisions of
this subparagraph, an individual shall not be ineligible for services
solely by reason of any such transfer to the extent that:
(i) in the case of an institutionalized individual, the asset
transferred was a home and title to the home as transferred to: (A) the
spouse of the individual; or (B) a child of the individual who is under
the age of twenty-one years or blind or disabled; or (C) a sibling of
the individual who has an equity interest in such home and who resided
in such home for a period of at least one year immediately before the
date the individual became an institutionalized individual; or (D) a
child of the individual who was residing in such home for a period of at
least two years immediately before the date the individual became an
institutionalized individual, and who provided care to the individual
which permitted the individual to reside at home rather than in an
institution or facility; or
(ii) the assets: (A) were transferred to the individual's spouse, or
to another for the sole benefit of the individual's spouse; or (B) were
transferred from the individual's spouse to another for the sole benefit
of the individual's spouse; or (C) were transferred to the individual's
child who is blind or disabled, or to a trust established solely for the
benefit of such child; or (D) were transferred to a trust established
solely for the benefit of an individual under sixty-five years of age
who is disabled; or
(iii) a satisfactory showing is made that: (A) the individual or the
individual's spouse intended to dispose of the assets either at fair
market value, or for other valuable consideration; or (B) the assets
were transferred exclusively for a purpose other than to qualify for
medical assistance; or (C) all assets transferred for less than fair
market value have been returned to the individual; or
(iv) denial of eligibility would cause an undue hardship, as
determined pursuant to the regulations of the department in accordance
with criteria established by the secretary of the federal department of
health and human services.
(4) Any transfer made by an individual or the individual's spouse
under subparagraph three of this paragraph shall cause the person to be
ineligible for services for a period equal to the total, cumulative
uncompensated value of all assets transferred during or after the
look-back period, divided by the average monthly costs of nursing
facility services provided to a private patient for a given period of
time at the time of application, as determined pursuant to the
regulations of the department. The period of ineligibility shall begin
with the first day of the first month during or after which assets have
been transferred for less than fair market value, and which does not
occur in any other periods of ineligibility under this paragraph. For
purposes of this subparagraph, the average monthly costs of nursing
facility services to a private patient for a given period of time at the
time of application shall be presumed to be one hundred twenty percent
of the average medical assistance rate of payment as of the first day of
January of each year for nursing facilities within the region wherein
the applicant resides, as established pursuant to paragraph (b) of
subdivision sixteen of section twenty-eight hundred seven-c of the
public health law.
(5) In the case of an asset held by an individual in common with
another person or persons in a joint tenancy, tenancy in common, or
similar arrangement, the asset, or the affected portion of the asset,
shall be considered to be transferred by such individual when any action
is taken, either by such individual or by any other person, that reduces
or eliminates such individual's ownership or control of such asset.
(6) In the case of a trust established by the individual, as
determined pursuant to the regulations of the department, any payment,
other than a payment to or for the benefit of the individual, from a
revocable trust is considered to be a transfer of assets by the
individual and any payment, other than to or for the benefit of the
individual, from the portion of an irrevocable trust which, under any
circumstance, could be made available to the individual is considered to
be a transfer of assets by the individual and, further, the value of any
portion of an irrevocable trust from which no payment could be made to
the individual under any circumstances is considered to be a transfer of
assets by the individual for purposes of this section as of the date of
establishment of the trust, or, if later, the date on which payment to
the individual is foreclosed.
(e) For transfers made on or after February eighth, two thousand six:
(1) (i) "assets" means all income and resources of an individual and
of the individual's spouse, including income or resources to which the
individual or the individual's spouse is entitled but which are not
received because of action by: the individual or the individual's
spouse; a person with legal authority to act in place of or on behalf of
the individual or the individual's spouse; a person acting at the
direction or upon the request of the individual or the individual's
spouse; or by a court or administrative body with legal authority to act
in place of or on behalf of the individual or the individual's spouse or
at the direction or upon the request of the individual or the
individual's spouse.
(ii) "blind" has the same meaning given to such term in section
1614(a)(2) of the federal social security act.
(iii) "disabled" has the same meaning given to such term in section
1614(a)(3) of the federal social security act.
(iv) "income" has the same meaning given to such term in section 1612
of the federal social security act.
(v) "resources" has the same meaning given to such term in section
1613 of the federal social security act, without regard, in the case of
an institutionalized individual, to the exclusion provided for in
subsection (a)(1) of such section.
(vi) "look-back period" means the sixty-month period immediately
preceding the date that an institutionalized individual is both
institutionalized and has applied for medical assistance.
(vii) "institutionalized individual" means any individual who is an
in-patient in a nursing facility, including an intermediate care
facility for the mentally retarded, or who is an in-patient in a medical
facility and is receiving a level of care provided in a nursing
facility, or who is receiving care, services or supplies pursuant to a
waiver granted pursuant to subsection (c) of section 1915 of the federal
social security act.
(viii) "intermediate care facility for the mentally retarded" means a
facility certified under article sixteen of the mental hygiene law and
which has a valid agreement with the department for providing
intermediate care facility services and receiving payment therefor under
title XIX of the federal social security act.
(ix) "nursing facility" means a nursing home as defined by section
twenty-eight hundred one of the public health law and an intermediate
care facility for the mentally retarded.
(x) "nursing facility services" means nursing care and health related
services provided in a nursing facility; a level of care provided in a
hospital which is equivalent to the care which is provided in a nursing
facility; and care, services or supplies provided pursuant to a waiver
granted pursuant to subsection (c) of section 1915 of the federal social
security act.
(2) The uncompensated value of an asset is the fair market value of
such asset at the time of transfer, minus the amount of the compensation
received in exchange for the asset.
(3) In determining the medical assistance eligibility of an
institutionalized individual, any transfer of an asset by the individual
or the individual's spouse for less than fair market value made within
or after the look-back period shall render the individual ineligible for
nursing facility services for the period of time specified in
subparagraph four of this paragraph. For purposes of this paragraph:
(i) the purchase of an annuity shall be treated as the disposal of an
asset for less than fair market value unless: the state is named as a
beneficiary in the first position for at least the total amount of
medical assistance paid on behalf of the annuitant, or the state is
named in the second position after the community spouse or minor or
disabled child and is named in the first position if such spouse or
representative of such child disposes of any such remainder for less
than fair market value; and the annuity meets the requirements of
section 1917(c)(1)(G) of the federal social security act;
(ii) the purchase of a life estate interest in another person's home
shall be treated as the disposal of an asset for less than fair market
value unless the purchaser resided in such home for a period of at least
one year after the date of purchase.
(iii) the purchase of a promissory note, loan, or mortgage shall be
treated as the disposal of an asset for less than fair market value
unless such note, loan, or mortgage meets the requirements of section
1917(c)(1)(I) of the federal social security act.
(4) Notwithstanding the provisions of this paragraph, an individual
shall not be ineligible for services solely by reason of any such
transfer to the extent that:
(i) in the case of an institutionalized individual, the asset
transferred was a home and title to the home as transferred to:
(A) the spouse of the individual; or (B) a child of the individual who
is under the age of twenty-one years or blind or disabled; or (C) a
sibling of the individual who has an equity interest in such home and
who resided in such home for a period of at least one year immediately
before the date the individual became an institutionalized individual;
or (D) a child of the individual who was residing in such home for a
period of at least two years immediately before the date the individual
became an institutionalized individual, and who provided care to the
individual which permitted the individual to reside at home rather than
in an institution or facility; or
(ii) the assets: (A) were transferred to the individual's spouse, or
to another for the sole benefit of the individual's spouse; or (B) were
transferred from the individual's spouse to another for the sole benefit
of the individual's spouse; or (C) were transferred to the individual's
child who is blind or disabled, or to a trust established solely for the
benefit of such child; or (D) were transferred to a trust established
solely for the benefit of an individual under sixty-five years of age
who is disabled; or
(iii) a satisfactory showing is made that: (A) the individual or the
individual's spouse intended to dispose of the assets either at fair
market value, or for other valuable consideration; or (B) the assets
were transferred exclusively for a purpose other than to qualify for
medical assistance; or (C) all assets transferred for less than fair
market value have been returned to the individual; or
(iv) denial of eligibility would cause an undue hardship, such that
application of the transfer of assets provision under this section would
deprive the individual of medical care, such that the individual's life
or health would be in danger, or would deprive the individual of food,
clothing, shelter, or other necessities of life. The commissioner of the
office of temporary and disability assistance shall develop a hardship
waiver process which shall include a timely process for determining
whether an undue hardship waiver will be granted and a timely process
under which an adverse determination can be appealed. The commissioner
of the office of temporary and disability assistance shall provide
notice of the hardship waiver process in writing to those individuals
who are required to comply with the transfer of assets provision under
this section. If such an individual is an institutionalized individual,
the facility in which he or she is residing shall be permitted to file
an undue hardship waiver application on behalf of such individual with
the consent of the individual or the personal representative of the
individual. If the application for an undue hardship waiver for such
individual is pending and meets certain criteria specified by the
secretary of health and human services, the commissioner of health may
provide for payments for nursing facility services in order to hold the
bed for the individual at the facility, but not in excess of payments
for thirty days.
(5) Any transfer made by an individual or the individual's spouse
under subparagraph three of this paragraph shall cause the person to be
ineligible for services for a period equal to the total, cumulative
uncompensated value of all assets transferred during or after the
look-back period, divided by the average monthly costs of nursing
facility services provided to a private patient for a given period of
time at the time of application, as determined pursuant to the
regulations of the office of temporary and disability assistance. The
period of ineligibility shall begin the first day of a month during or
after which assets have been transferred for less than fair market
value, or the first day the individual is receiving services for which
medical assistance coverage would be available based on an approved
application for such care but for the provisions of subparagraph three
of this paragraph, whichever is later, and which does not occur in any
other periods of ineligibility under this paragraph. For purposes of
this subparagraph, the average monthly costs of nursing facility
services to a private patient for a given period of time at the time of
application shall be presumed to be one hundred twenty percent of the
average medical assistance rate of payment as of the first day of
January of each year for nursing facilities within the region wherein
the applicant resides, as established pursuant to paragraph (b) of
subdivision sixteen of section twenty-eight hundred seven-c of the
public health law.
(6) In the case of an asset held by an individual in common with
another person or persons in a joint tenancy, tenancy in common, or
similar arrangement, the asset, or the affected portion of the asset,
shall be considered to be transferred by such individual when any action
is taken, either by such individual or by any other person, that reduces
or eliminates such individual's ownership or control of such asset.
(7) In the case of a trust established by the individual, as
determined pursuant to the regulations of the office of temporary and
disability assistance, any payment, other than a payment to or for the
benefit of the individual, from a revocable trust is considered to be a
transfer of assets by the individual and any payment, other than to or
for the benefit of the individual, from the portion of an irrevocable
trust which, under any circumstance, could be made available to the
individual is considered to be a transfer of assets by the individual
and, further, the value of any portion of an irrevocable trust from
which no payment could be made to the individual under any circumstances
is considered to be a transfer of assets by the individual for purposes
of this section as of the date of establishment of the trust, or, if
later, the date on which payment to the individual is foreclosed.
* (f) The commissioner of the office of temporary and disability
assistance shall promulgate such rules and regulations as may be
necessary to carry out the provisions of this subdivision.
* NB There are 2 š(f)'s
* (f) The commissioner shall promulgate such rules and regulations as
may be necessary to carry out the provisions of this subdivision.
* NB There are 2 š(f)'s
* 6. a. The commissioner of health shall apply for a home and
community-based services waiver pursuant to subdivision (c) of section
nineteen hundred fifteen of the federal social security act in order to
provide home and community-based services, not included under the
medical assistance program. The waiver must be limited to no more than
one thousand two hundred persons, seven hundred or fewer of whom shall
be persons who would otherwise require nursing facility care and five
hundred or fewer of whom shall be persons who would otherwise require
hospital care.
b. A person eligible for participation in the waiver program shall:
(i) be eighteen years of age or under;
(ii) be physically disabled, according to the federal supplemental
security income program criteria, including but not limited to a person
who is multiply disabled;
(iii) have been hospitalized for at least thirty consecutive days or
resided in a nursing facility for at least thirty consecutive days;
(iv) require the level of care provided by a nursing facility or by a
hospital;
(v) be capable of being cared for in the community if provided with
case management services and/or other services specified in paragraph f
of this subdivision, in addition to other services provided under this
title, as determined by the assessment required by paragraph d of this
subdivision;
(vi) be ineligible for medical assistance if living in the community
because the income and resources of responsible relatives, as determined
through minimum documentation, would be deemed available to him or her,
causing him or her to exceed the income or resource eligibility level
for such assistance; however, up to one hundred persons who would
otherwise require nursing facility care, and up to one hundred persons
who would otherwise require hospital care, may be allowed to participate
in the waiver program without regard to the provisions of this
subparagraph; provided that such persons may participate only following
federal approval and state implementation of the waiver program for a
minimum number of one thousand two hundred persons, seven hundred of
whom shall be persons who would otherwise require nursing facility care
and five hundred of whom shall be persons who would otherwise require
hospital care;
(vii) be capable of being cared for at less cost in the community than
in the appropriate institutional setting; and
(viii) meet such other criteria as may be established by the
commissioner as may be necessary to administer the provisions of this
subdivision in an equitable manner.
c. Social services districts shall assess the eligibility of persons
in accordance with the provisions of paragraphs b, d and i of this
subdivision and shall refer persons who appear to meet the criteria set
forth in such paragraphs to the commissioner of health for consideration
for participation in the waiver program and final determinations of
their eligibility for participation in the waiver program.
d. The commissioner of health shall designate persons to assess the
eligibility of persons in accordance with paragraphs b, c and i of this
subdivision under consideration for participation in the waiver program.
Persons designated by such commissioner may include the person's
physician, a representative of the social services district, a
representative of the provider of a long term home health care program
or certified home health agency and, where appropriate, the discharge
coordinator of the hospital or nursing facility and such other persons
as such commissioner deems appropriate. The assessment shall include,
but need not be limited to, an evaluation of the medical, social,
habilitation, and environmental needs of the person and shall serve as
the basis for the development and provision of an appropriate plan of
care for the person.
e. Prior to a person's participation in the waiver program, the social
services district or the commissioner of health, as appropriate, shall
undertake or arrange for the development of a written plan of care for
the provision of services consistent with the level of care determined
by the assessment, in accordance with criteria established by the
commissioner of health.
f. Home and community-based services which may be provided to persons
specified in paragraph b of this subdivision include: (i) case
management services; (ii) respite services; (iii) home adaptation; and
(iv) such other home and community-based services, other than room and
board, as may be approved by the secretary of the federal department of
health and human services.
g. Social services districts shall designate who may provide the home
and community-based services identified in paragraph f of this
subdivision, subject to the approval of the commissioner of health.
h. Notwithstanding any other provision of this chapter or any other
law to the contrary, for purposes of determining medical assistance
eligibility for persons specified in paragraph b of this subdivision,
the income and resources of responsible relatives shall not be deemed
available when the person returns home for as long as the person meets
the criteria specified in this subdivision.
i. Before a person may participate in the waiver program specified in
paragraph a of this subdivision, the social services district shall
determine that:
(i) for a person who would otherwise require nursing facility care,
there is a reasonable expectation that the annual medical assistance
expenditures for home and community-based services for such person under
the waiver program would not exceed the expenditures for nursing
facility care that would have been made had the waiver not been granted;
or
(ii) for a person who would otherwise require hospital care, there is
a reasonable expectation that the annual medical assistance expenditures
for home and community-based services for such person under the waiver
program would not exceed the expenditures for hospital care that would
have been made had the waiver not been granted.
j. The commissioner shall review the plans of care and expenditure
estimates determined by social services districts prior to the
participation of any person in the waiver program.
k. This subdivision shall be effective only if, and as long as,
federal financial participation is available for expenditures incurred
under this subdivision.
* NB Repealed December 31, 2006
6-a. a. The commissioner of health shall apply for a nursing facility
transition and diversion medicaid waiver pursuant to subdivision (c) of
section nineteen hundred fifteen of the federal social security act in
order to provide home and community based services to individuals who
would otherwise be cared for in a nursing facility and who would be
considered to be part of an aggregate group of individuals who, taken
together, will be cared for at less cost in the community than they
would have otherwise and to provide reimbursement for several home and
community based services not presently included in the medical
assistance program. The initial application shall provide for no less
than five thousand persons to be eligible to participate in the waiver
spread over the first three years and continue to increase thereafter.
b. A person eligible for participation in the nursing facility
transition and diversion medicaid waiver program shall:
(i) be at least eighteen years of age;
(ii) be eligible for and in receipt of medicaid authorization for long
term care services, including nursing facility services;
(iii) have resided in a nursing facility and/or have been assessed and
determined to require the level of care provided by a nursing facility;
(iv) be capable of residing in the community if provided with services
specified in paragraph f of this subdivision, in addition to other
services provided under this title, as determined by the assessment
required by paragraph d of this subdivision; and
(v) meet such other criteria as may be established by the commissioner
of health as may be necessary to administer the provision of this
subdivision in an equitable manner.
c. The department of health shall develop such waiver application in
conjunction with independent living centers, representatives from
disability and senior groups and such other interested parties as the
department shall determine to be appropriate.
d. The commissioner of health shall contract with not-for-profit
agencies around the state that have experience with providing community
based services to individuals with disabilities, hereinafter referred to
as regional resource development specialists, who shall be responsible
for initial contact with the prospective waiver participant, for
assuring the waiver candidates have choice in selecting a service
coordinator and other providers, and for assessing applicants including
decisions for eligibility for participation in the waiver, which contain
the original service plan and all subsequent revised service plans.
Regional resource development specialists shall be responsible for
approving service plans and the department of health shall provide
technical assistance and oversight.
e. Prior to the person's participation in the waiver program, a
service coordinator approved by the department of health shall undertake
the development of a written plan of care for the provision of services
consistent with the level of care determined by an initial assessment,
in accordance with criteria established by the commissioner of health.
Such plans shall set forth the type of services to be furnished, the
amount, the frequency and duration of each service and the type of
providers to furnish each service.
f. Nursing facility transition and diversion services which may be
provided to persons specified in paragraph b of this subdivision shall
be established and defined as part of the waiver application development
process specified in paragraph c of this subdivision and may include:
(i) case management services; (ii) personal care; (iii) independent
living skills training; (iv) environmental accessibility adaptations;
(v) costs of community transition services; (vi) assistive technology;
(vii) adult day health; (viii) staff for safety assurance; (ix)
non-medical support services needed to maintain independence; (x)
respite services; and (xi) such other home and community based services
as may be approved by the secretary of the federal department of health
and human services.
g. The department of health shall designate who may provide the
nursing facility transition and diversion services identified in
paragraph f of this subdivision, subject to the approval of the
commissioner of health.
h. Before a person may participate in the nursing transition waiver
program specified in this subdivision, the regional resource development
specialists shall determine that:
(i) the individual is at least eighteen years of age and eligible for
and in receipt of medicaid authorization for long term care services,
including nursing facility services; and
(ii) the individual resides in a nursing facility and/or has been
assessed and determined to require nursing facility care.
7. a. The commissioner of health shall apply for a home and
community-based waiver, pursuant to subdivision (c) of section nineteen
hundred fifteen of the federal social security act, in order to provide
home and community-based services not presently included in the medical
assistance program.
b. Persons eligible for participation in the waiver program shall:
(i) be eighteen years of age or under;
(ii) have a developmental disability, as such term is defined in
subdivision twenty-two of section 1.03 of the mental hygiene law;
(iii) demonstrate complex health care needs, as defined in paragraph c
of this subdivision;
(iv) require the level of care provided by an intermediate care
facility for the developmentally disabled;
(v) not be hospitalized or receiving care in a nursing facility, an
intermediate care facility for the developmentally disabled or any other
institution;
(vi) be capable of being cared for in the community if provided with
case management services, respite services, home adaptation, and any
other home and community-based services, other than room and board, as
may be approved by the secretary of the federal department of health and
human services, in addition to other services provided under this title,
as determined by the assessment required by paragraph f of this
subdivision;
(vii) be ineligible for medical assistance because the income and
resources of responsible relatives are deemed available to him or her,
causing him or her to exceed the income or resource eligibility level
for such assistance;
(viii) be capable of being cared for at less cost in the community
than in an intermediate care facility for the developmentally disabled;
and
(ix) meet such other criteria as may be established by the
commissioner of health, in conjunction with the commissioner of mental
retardation and developmental disabilities, as may be necessary to
administer the provisions of this subdivision in an equitable manner,
including those criteria established pursuant to paragraph d of this
subdivision.
c. For purposes of this subdivision, persons who "demonstrate complex
health care needs", shall be defined as persons who require medical
therapies that are designed to replace or compensate for a vital body
function or avert immediate threat to life; that is, persons who rely on
medical devices, nursing care, monitoring or prescribed medical therapy
for the maintenance of life over a period expected to extend beyond
twelve months.
d. The commissioner of health, in conjunction with the commissioner of
mental retardation and developmental disabilities, shall establish
selection criteria to ensure that participants are those who are most in
need and reflect an equitable geographic distribution. Such selection
criteria shall include, but not be limited to, the imminent risk of
institutionalization, the financial burden imposed upon the family as a
result of the child's health care needs, and the level of stress within
the family unit due to the unrelieved burden of caring for the child at
home.
e. Social services districts, in consultation with the office of
mental retardation and developmental disabilities, shall assess the
eligibility of persons in accordance with the provisions of paragraph b
of this subdivision, as well as the selection criteria established by
the commissioner of health and the commissioner of mental retardation
and developmental disabilities as required by paragraph d of this
subdivision.
f. The commissioner of health, in conjunction with the commissioner of
mental retardation and developmental disabilities, shall designate
persons to assess the eligibility of persons under consideration for
participation in the waiver program. Persons designated by such
commissioners may include the person's physician, a representative of
the social services district, representative of the appropriate
developmental disabilities services office and such other persons as the
commissioners deem appropriate. The assessment shall include, but need
not be limited to, an evaluation of the health, psycho-social,
developmental, habilitation and environmental needs of the person and
shall serve as the basis for the development and provision of an
appropriate plan of care for such person.
g. Prior to a person's participation in the waiver program, the office
of mental retardation and developmental disabilities shall undertake or
arrange for the development of a written plan of care for the provision
of services consistent with the level of care determined by the
assessment, in accordance with criteria established by the commissioner
of health, in consultation with the commissioner of mental retardation
and developmental disabilities. Such plan of care shall be reviewed by
such commissioners prior to the provision of services pursuant to the
waiver program.
h. Home and community-based services which may be provided to persons
specified in paragraph b of this subdivision shall, in addition to those
services otherwise authorized, include (i) case management services;
(ii) respite services; (iii) home adaptation, and (iv) such other home
and community-based services, other than room and board, as may be
approved by the secretary of the federal department of health and human
services.
i. The office of mental retardation and developmental disabilities
shall designate who may provide the home and community-based services
identified in paragraph h of this subdivision, subject to the approval
of the commissioner of health.
j. Notwithstanding any other provision of this chapter other than
subdivision six of this section or any other law to the contrary, for
purposes of determining medical assistance eligibility for persons
specified in paragraph b of this subdivision, the income and resources
of a responsible relative shall not be deemed available for as long as
the person meets the criteria specified in this subdivision.
k. Before a person may participate in the waiver program specified in
paragraph a of this subdivision, the office of mental retardation and
developmental disabilities shall determine that there is a reasonable
expectation that the annual medical assistance expenditures for such
person under the waiver would not exceed the expenditures for care in an
intermediate care facility for the developmentally disabled that would
have been made had the waiver not been granted.
l. The commissioner of health, in conjunction with the commissioner of
mental retardation and developmental disabilities, shall review the
plans of care and expenditure estimates prior to the participation of
any person in the waiver program.
m. Within one year of federal waiver approval, and on an annual basis
thereafter, until such time as the waiver program is fully implemented,
the commissioner of health, in conjunction with the commissioner of
mental retardation and developmental disabilities, shall report on the
status of the waiver program to the governor and the legislature. Such
report shall specify the number of children participating in the waiver
program, the geographic distribution of those so participating, health
profiles, service costs and length of time the children have
participated in the waiver program. The report shall also provide
follow-up information on children who have withdrawn from the waiver
program, including data on residential program placements.
n. This subdivision shall be effective only if, and as long as,
federal financial participation is available for expenditures incurred
under this subdivision.
8. Notwithstanding any inconsistent provision of this chapter or any
other law to the contrary, income and resources which are otherwise
exempt from consideration in determining a person's eligibility for
medical care, services and supplies available under this title, shall be
considered available for the payment or part payment of the costs of
such medical care, services and supplies as required by federal law and
regulations.
9. a. The commissioner shall apply for a general waiver, pursuant to
subdivision (c) of section nineteen hundred fifteen of the federal
social security act, in order to provide medical assistance for persons
specified in paragraphs b and c of this subdivision and reimbursement
for several home and community-based services not presently included in
the medical assistance program. If granted the general waiver, the
commissioner may authorize such persons to receive services under the
general waiver to the extent funds are appropriated for transfer to the
department for the state share of medical assistance payments for such
waiver services from the budget of the office of mental health.
b. Persons eligible for inclusion in the general waiver shall:
(i) be under eighteen years of age;
(ii) have a mental illness, as such term is defined in subdivision
twenty of section 1.03 of the mental hygiene law;
(iii) demonstrate complex health or mental health care needs, as
defined in paragraph d of this subdivision;
(iv) require the level of care provided by a hospital as defined in
subdivision ten of section 1.03 of the mental hygiene law which provides
intermediate or long-term care and treatment, or within the past six
months have been hospitalized for at least thirty consecutive days, or
have resided in such a hospital for at least one hundred eighty
consecutive days;
(v) be capable of being cared for in the community if provided with
case management services, clinical interventions, crisis services,
social training, rehabilitation services, counseling, respite services,
medication therapy, partial hospitalization, environmental
modifications, educational and related services, and/or medical social
services, in addition to other services, as determined by the assessment
required by paragraph g of this subdivision and included in the written
plan of care developed pursuant to paragraph h of this subdivision;
(vi) be eligible or, if discharged, would be eligible for medical
assistance, or are ineligible for medical assistance because the income
and resources of responsible relatives are or, if discharged, would be
deemed available to such persons causing them to exceed the income or
resource eligibility level for such assistance;
(vii) be capable of being cared for at less cost in the community than
in a hospital, as defined in subdivision ten of section 1.03 of the
mental hygiene law; and
(viii) meet such other criteria as may be established by the
commissioner of mental health, in conjunction with the commissioner, as
may be necessary to administer the provisions of this subdivision in an
equitable manner, including those criteria established pursuant to
paragraph e of this subdivision.
c. Persons eligible for inclusion in the general waiver shall meet all
the requirements set forth in subparagraphs (i) through (viii) of
paragraph b of this subdivision; and shall be eligible for, shall have
applied for, or shall reside in an institutional placement including a
hospital as defined in subdivision ten of section 1.03 of the mental
hygiene law which provides intermediate or long-term care and treatment.
d. For purposes of this subdivision, persons who "demonstrate complex
health or mental health care needs", shall be defined as persons who
require medical or mental health therapies, care or treatments that are
designed to replace or compensate for a vital functional limitation or
to avert an immediate threat to life; that is, persons who rely on
mental health care, nursing care, monitoring, or prescribed medical or
mental health therapy for the maintenance of quality of life over a
period expected to extend beyond twelve months.
e. The commissioner of mental health, in conjunction with the
commissioner, shall establish selection criteria to ensure that
participants are those who are most in need. Such selection criteria
shall include, but not be limited to: the need for continued
hospitalization or the risk of hospitalization; the financial burden
imposed upon the family, or which would be imposed upon the family if an
institutionalized participant were to be discharged, as a result of the
child's health or mental health care needs; and the level of stress or
the anticipated level of stress within the family unit due to the
unrelieved burden of caring for the child at home.
f. Social services districts, in conjunction with the office of mental
health and the local governmental unit as defined in section 41.03 of
the mental hygiene law, shall determine the eligibility of persons in
accordance with the provisions of paragraphs b and c of this
subdivision, as well as the selection criteria established by the
commissioner and the commissioner of mental health as required by
paragraph e of this subdivision.
g. The commissioner of mental health, in conjunction with the
commissioner, shall designate persons to undertake an assessment to
determine the eligibility of persons under consideration for inclusion
in the general waiver. Persons designated by such commissioners may
include the potentially eligible person's physician, a representative of
the local governmental unit as defined in section 41.03 of the mental
hygiene law, a representative of the appropriate hospital or regional
office of the office of mental health, and such other persons as the
commissioners deem appropriate. The assessment shall include, but not be
limited to, an evaluation of the mental health, health, psycho-social,
rehabilitation and environmental needs of the person, and shall serve as
the basis for the development and provision of an appropriate plan of
care for such person.
h. Prior to a person's inclusion in the general waiver, the office of
mental health and the local governmental unit as defined in section
41.03 of the mental hygiene law, shall undertake or arrange for the
development of a written plan of care, including identification of
service providers if known, for the provision of services in
consultation with the individual and their family whenever clinically
appropriate, consistent with the level of care determined by the
assessment, in accordance with criteria established by the commissioner
of mental health, in consultation with the commissioner. If a provider
of services is identified in a written plan of care, such provider shall
be designated pursuant to paragraph j of this subdivision. Such plan of
care shall be reviewed by such commissioners and approved by the
commissioner of mental health prior to the provision of services
pursuant to the general waiver.
i. Home and community-based services which may be provided to persons
specified in paragraphs b and c of this subdivision shall, in addition
to those services otherwise authorized, include but are not limited to
(i) case management services; (ii) clinical interventions; (iii) crisis
services; (iv) social training; (v) rehabilitation services; (vi)
counseling; (vii) respite services; (viii) medication therapy; (ix)
partial hospitalization; (x) environmental modifications; (xi)
educational and related services; (xii) medical social services; and
other services included in the written plan of care developed pursuant
to paragraph h of this subdivision.
j. The office of mental health, in conjunction with the social
services district and the local governmental unit, shall designate who
may provide the home and community-based services identified in
paragraph i of this subdivision.
k. Notwithstanding any provision of this chapter other than
subdivision six or seven of this section, or any other law to the
contrary, for purposes of determining medical assistance eligibility for
persons specified in paragraphs b and c of this subdivision, the income
and resources of a responsible relative shall not be deemed available
for as long as the person meets the criteria specified in this
subdivision.
l. Before a person may participate in the general waiver specified in
paragraph a of this subdivision, the social services district and the
office of mental health shall determine that there is a reasonable
expectation that the annual medical assistance expenditures for such
person under the waiver would not exceed the expenditures for care in a
hospital, as defined in subdivision ten of section 1.03 of the mental
hygiene law, that would have been made had the waiver not been granted.
m. The commissioner, in conjunction with the commissioner of mental
health, shall review the expenditure estimates determined by social
services districts and the office of mental health, prior to the
inclusion of any person in the general waiver.
n. Within one year of federal waiver approval, and on an annual basis
thereafter, until such time as the waiver is fully implemented, the
commissioner of mental health, in conjunction with the commissioner,
shall report on the status of the general waiver to the governor, the
legislature, including the respective chairpersons of the senate and
assembly committees of mental health and the chairs of the senate
finance and assembly ways and means committees and the director of the
division of the budget. Such report shall specify the number of children
included in the waiver, the geographic distribution of those included,
health and mental health profiles, utilization and costs of services by
region including costs avoided in residential treatment facilities and
inpatient facilities operated by the office of mental health, the length
of time the children have participated in the waiver and regional
information on the status of waiting lists for waiver services and for
services in residential settings, where appropriate. The report shall
also provide follow-up information on children who have withdrawn from
the waiver, including data on residential program placements.
o. This subdivision shall be effective if, and as long as, federal
financial participation is available for expenditures incurred under
this subdivision.
p. Nothing herein shall be construed to create an entitlement to
services under the approved general waiver implemented by the
commissioner in accordance with this subdivision.
* 10. (a) The commissioner of health shall establish a demonstration
program with an enrollment not to exceed two hundred fifty persons for
persons who are eligible for medical assistance because of their
eligibility for benefits under section 1619(b) of title XVI of the
federal social security act and who are receiving services defined in
either paragraph (d) or (e) of subdivision two of section three hundred
sixty-five-a of this article and who are at risk of becoming ineligible
for medical assistance due to income or resources. The commissioner
shall promptly apply to the federal government for any waiver necessary
to secure federal financial participation in medical assistance provided
pursuant to this paragraph.
(b) Notwithstanding any provision of law to the contrary, and subject
to the availability of federal financial participation, persons
described in paragraph (a) of this subdivision shall continue to be
eligible for medical assistance, except that: (i) the income of the
individual shall not exceed three times the amount established in
paragraph (h) of subdivision two of section three hundred sixty-six-c of
this article; and (ii) in the event that there is a responsible
relative, the income of the individual and the responsible relative
shall not exceed the amount set forth in subparagraph (i) of this
paragraph plus thirty-three percent of that amount; and (iii) the
resources of the individual and responsible relative, if any, shall not
exceed the amount established pursuant to clause (A) of subparagraph (i)
of paragraph (d) of subdivision two of section three hundred sixty-six-c
of this article.
(c) The commissioner of health shall establish a sliding fee scale for
services under this subdivision. Fees shall be no more than: one percent
of the income of an eligible individual with an income at or below two
times the amount established in paragraph (h) of subdivision two of
section three hundred sixty-six-c of this article; and no more than
three percent of the income of an eligible individual with an income
greater than such amount. Fees for an eligible individual with a spouse
or a minor child shall be limited to fifty percent of the fees
established for an individual.
* The constitutionality of certain line item vetoes made by Governor
Pataki in 1998 is the subject of pending litigation (Sheldon Silver,
Member and Speaker, New York State Assembly v. George E. Pataki,
Governor, State of New York, Misc.2d, NYLJ, Jan. 14 1999). The New
York State Legislative Bill Drafting Commission will carry the affected
provisions of law as they would appear in the event the vetoes are
finally upheld judicially and as they would appear if such vetoes are
finally held to be unconstitutional.
11. The commissioner of health shall, consistent with this title, make
any necessary amendments to the state plan for medical assistance
submitted pursuant to section three hundred sixty-three-a of this title,
in order to ensure federal financial participation in expenditures under
subparagraphs twelve and thirteen of paragraph (a) of subdivision one of
this section. Notwithstanding any other provision of law to the
contrary, medical assistance under subparagraphs twelve and thirteen of
paragraph (a) of subdivision one of this section shall be provided only
to the extent permitted under federal law, if, for so long as, and to
the extent that federal financial participation is available therefor.
12. (a) Notwithstanding any provision of law to the contrary, the
commissioner of health, in consultation with the office of children and
family services, shall develop and submit applications for waivers
pursuant to section nineteen hundred fifteen of the federal social
security act as may be necessary to provide medical assistance,
including services not presently included in the medical assistance
program, for persons described in paragraph (b) of this subdivision. If
granted such waivers, the commissioner of health, on the advice and
recommendation of the commissioner of children and family services, may
authorize such persons to receive such assistance to the extent funds
are appropriated therefor.
(b) Persons eligible for inclusion in the waiver program established
by this subdivision shall be residents of New York state under the age
of twenty-one years, who are eligible for care in a medical institution,
who have had the responsibility for their care and placement transferred
to the local commissioner of a social services district or to the office
of children and family services as adjudicated juvenile delinquents
under article three of the family court act, where placement is in a
non-secure setting, and who:
(i) have a diagnosis of a mental disorder under the most recent
edition of the Diagnostic and Statistical Manual of Mental Disorders;
(ii) have a diagnosis of a developmental disability as defined in
section 1.03 of the mental hygiene law; or
(iii) have a physical disability.
(c) Services which may be provided to persons specified in paragraph
(b) of this subdivision, in addition to services otherwise authorized,
may include but are not limited to:
(i) services that will permit children to be better served, prevent
institutionalization, and allow utilization at lower-levels of
institutional care;
(ii) case management services;
(iii) respite services;
(iv) medical social services;
(v) nutritional counseling;
(vi) respiratory therapy;
(vii) home adaptation and/or environmental modifications;
(viii) clinical interventions;
(ix) crisis services;
(x) social training;
(xi) habilitation and rehabilitation services;
(xii) counseling;
(xiii) medication therapy;
(xiv) partial hospitalization;
(xv) educational and related services; and
(xvi) other services included in the written plan of care.
(d) Notwithstanding any provision of this chapter or any other law to
the contrary, for purposes of determining medical assistance eligibility
for persons specified in paragraph (b) of this subdivision, the income
and resources of a legally responsible relative shall not be deemed
available for as long as the person meets the criteria specified in this
subdivision; provided, however, that such income shall continue to be
deemed unavailable should responsibility for the care and placement of
the person be returned to his or her parent or other legally responsible
person.
(e) Before a person may participate in the waiver program established
by this subdivision, the social services district that is fiscally
responsible for the person shall determine that there is a reasonable
expectation that annual medical assistance expenditures for such person
will not exceed federal requirements.
(f) The eligibility and benefits authorized by this subdivision shall
be applicable if, and as long as, federal financial participation is
available for expenditures incurred under this subdivision. The
eligibility and benefits authorized by this subdivision shall not apply
unless all necessary approvals under federal law and regulation have
been obtained to receive federal financial participation in the costs of
services provided pursuant to this subdivision.
(g) Nothing in this subdivision shall be construed to create an
entitlement to services under the waiver program established by this
subdivision.
(h) A person participating in the waiver program established by this
subdivision may continue participation in the program until it is no
longer consistent with the plan of care, or until age twenty-one,
whichever occurs earlier, notwithstanding the person's status as having
been discharged from the care and placement of the local commissioner of
a social services district or the commissioner of children and family
services, including adoption.
Disclaimer: These codes may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
