§ 366. Eligibility. 1. (a) Definitions. For purposes of this section:

(1) "benchmark coverage" refers to medical assistance coverage defined
in subdivision one of section three hundred sixty-five-a of this title;

(2) "caretaker relative" means a relative of a dependent child by
blood, adoption, or marriage with whom the child is living, who assumes
primary responsibility for the child's care and who is one of the
following:

(i) the child's father, mother, grandfather, grandmother, brother,
sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt,
first cousin, nephew, or niece; or

(ii) the spouse of such parent or relative, even after the marriage is
terminated by death or divorce;

(3) "family size" means the number of persons counted as members of an
individual's household; with respect to individuals whose medical
assistance eligibility is based on modified adjusted gross income, in
determining the family size of a pregnant woman, or of other individuals
who have a pregnant woman in their household, the pregnant woman is
counted as herself plus the number of children she is expected to
deliver;

(4) "federal poverty line" means the poverty line defined and annually
revised by the United States department of health and human services;

(5) "household", for purposes of determining the financial eligibility
of individuals whose medical assistance eligibility is based on modified
adjusted gross income, shall mean:

(i) Basic rule for taxpayers not claimed as a tax dependent. In the
case of an individual who expects to file a tax return for the taxable
year in which an initial determination or renewal of eligibility is
being made, and who does not expect to be claimed as a tax dependent by
another taxpayer, the household consists of the taxpayer and, subject to
clause (v) of this subparagraph, all persons whom such individual
expects to claim as a tax dependent;

(ii) Basic rule for individuals claimed as a tax dependent. In the
case of an individual who expects to be claimed as a tax dependent by
another taxpayer for the taxable year in which an initial determination
or renewal of eligibility is being made, the household is the household
of the taxpayer claiming such individual as a tax dependent, except that
the household must be determined in accordance with clause (iii) of this
subparagraph in the case of:

(A) Individuals other than a spouse or child who expect to be claimed
as a tax dependent by another taxpayer; and

(B) Individuals under nineteen years of age, or under twenty-one years
of age if a full-time student, who expect to be claimed by one parent as
a tax dependent and are living with both parents but whose parents do
not expect to file a joint tax return; and

(C) Individuals under nineteen years of age, or under twenty-one years
of age if a full-time student, who expect to be claimed as a tax
dependent by a non-custodial parent. For purposes of this subclause:

(1) A court order or binding separation, divorce, or custody agreement
establishing physical custody controls; or

(2) If there is no such order or agreement or in the event of a shared
custody agreement, the custodial parent is the parent with whom the
child spends most nights;

(iii) Rules for individuals who neither file a tax return nor are
claimed as a tax dependent. In the case of individuals who do not expect
to file a Federal tax return and do not expect to be claimed as a tax
dependent for the taxable year in which an initial determination or
renewal of eligibility is being made, or who are described in subclauses
(A), (B), or (C) of clause (ii) of this subparagraph, the household
consists of the individual and, if living with the individual:

(A) The individual's spouse;

(B) The individual's children under nineteen years of age, or under
twenty-one years of age if a full-time student; and

(C) In the case of an individual under nineteen years of age, or under
twenty-one years of age if a full-time student, the individual's parents
and the individual's siblings under nineteen years of age, or under
twenty-one years of age if a full-time student;

(iv) Married couples. In the case of a married couple living together,
each spouse will be included in the household of the other spouse,
regardless of whether they expect to file a joint tax return under
section six thousand thirteen of the internal revenue code or whether
one spouse expects to be claimed as a tax dependent by the other spouse.

(v) For purposes of clause (i) of this subparagraph, if a taxpayer
cannot reasonably establish that another individual is a tax dependent
of the taxpayer for the tax year in which Medicaid is sought, the
inclusion of such individual in the household of the taxpayer is
determined in accordance with clause (iii) of this subparagraph.

(6) "MAGI" means modified adjusted gross income;

(7) "MAGI-based income" means income calculated using the same
methodologies used to determine MAGI under section 36B(d)(2)(B) of the
Internal Revenue Code, with the exception of lump sum payments, certain
educational scholarships, and certain American Indian and Alaska Native
income, as specified by the commissioner of health consistent with
federal regulation at 42 CFR 435.603 or any successor regulation;

(8) "MAGI household income" means, with respect to an individual whose
medical assistance eligibility is based on modified adjusted gross
income, the sum of the MAGI-based income of every person included in the
individual's MAGI household, except that it shall not include the
MAGI-based income of the following persons if such persons are not
expected to be required to file a tax return in the taxable year in
which eligibility for medical assistance is being determined:

(i) a biological, adopted, or step child who is included in the
individual's MAGI household; or

(ii) a person, other than a spouse or a biological, adopted, or step
child, who is expected to be claimed as a tax dependent by the
individual;

(9) "standard coverage" refers to medical assistance coverage defined
in subdivision two of section three hundred sixty-five-a of this title.

(b) MAGI eligibility groups. Individuals listed in this paragraph are
eligible for medical assistance based on modified adjusted gross income.
In determining the eligibility of an individual for the MAGI eligibility
group with the highest income standard under which the individual may
qualify, an amount equivalent to five percentage points of the federal
poverty level for the applicable family size will be deducted from the
household income.

(1) An individual is eligible for benchmark coverage if his or her
MAGI household income does not exceed one hundred thirty-three percent
of the federal poverty line for the applicable family size and he or she
is:

(i) age nineteen or older and under age sixty-five; and

(ii) not pregnant; and

(iii) not entitled to or enrolled for benefits under parts A or B of
title XVIII of the federal social security act; and

(iv) not otherwise eligible for and receiving coverage under
subparagraphs two and three of this paragraph; and

(v) not a parent or other caretaker relative of a dependent child
under twenty-one years of age and living with such child, unless such
child is receiving benefits under this title or under title 1-A of
article twenty-five of the public health law, or otherwise is enrolled
in minimum essential coverage.

(2) A pregnant woman or an infant younger than one year of age is
eligible for standard coverage if his or her MAGI household income does
not exceed the MAGI-equivalent of two hundred percent of the federal
poverty line for the applicable family size, which shall be calculated
in accordance with guidance issued by the secretary of the United States
department of health and human services, or an infant younger than one
year of age who meets the presumptive eligibility requirements of
subdivision four of section three hundred sixty-four-i of this title.

(3) A child who is at least one year of age but younger than nineteen
years of age is eligible for standard coverage if his or her MAGI
household income does not exceed the MAGI-equivalent of one hundred
thirty-three percent of the federal poverty line for the applicable
family size, which shall be calculated in accordance with guidance
issued by the Secretary of the United States department of health and
human services, or a child who is at least one year of age but younger
than nineteen years of age who meets the presumptive eligibility
requirements of subdivision four of section three hundred sixty-four-i
of this title.

* (4) An individual who is a pregnant woman or is a member of a family
that contains a dependent child living with a parent or other caretaker
relative is eligible for standard coverage if his or her MAGI household
income does not exceed the MAGI-equivalent of one hundred thirty percent
of the highest amount that ordinarily would have been paid to a person
without any income or resources under the family assistance program as
it existed on the first day of November, nineteen hundred ninety-seven,
which shall be calculated in accordance with guidance issued by the
Secretary of the United States department of health and human services;
for purposes of this subparagraph, the term dependent child means a
person who is under eighteen years of age, or is eighteen years of age
and a full-time student, 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.

* NB Effective until January 1, 2023 subject to federal financial
participation

* (4) An individual who is a pregnant woman or is a member of a family
that contains a dependent child living with a parent or other caretaker
relative is eligible for standard coverage if their MAGI household
income does not exceed one hundred thirty-three percent of the federal
poverty line for the applicable family size, which shall be calculated
in accordance with guidance issued by the Secretary of the United States
department of health and human services; for purposes of this
subparagraph, the term dependent child means a person who is under
eighteen years of age, or is eighteen years of age and a full-time
student, 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.

* NB Effective January 1, 2023 subject to federal financial
participation

(5) A child who is under twenty-one years of age and who was in foster
care under the responsibility of the state on his or her eighteenth
birthday is eligible for standard coverage; notwithstanding any
provision of law to the contrary, the provisions of this subparagraph
shall be effective only if and for so long as federal financial
participation is available in the costs of medical assistance furnished
hereunder.

(6) An individual who is not otherwise eligible for medical assistance
under this section is eligible for coverage of family planning services
reimbursed by the federal government at a rate of ninety percent, and
for coverage of those services identified by the commissioner of health
as services generally performed as part of or as a follow-up to a
service eligible for such ninety percent reimbursement, including
treatment for sexually transmitted diseases, if his or her income does
not exceed the MAGI-equivalent of two hundred percent of the federal
poverty line for the applicable family size, which shall be calculated
in accordance with guidance issued by the secretary of the United States
department of health and human services; provided further that the
commissioner of health is authorized to establish criteria for
presumptive eligibility for services provided pursuant to this
subparagraph in accordance with all applicable requirements of federal
law or regulation pertaining to such eligibility.

* (7) A child who is nineteen or twenty years of age living with his
or her parent will be eligible for standard coverage if the sum of the
MAGI-based income of every person included in the child's MAGI household
exceeds one hundred thirty-three percent, but does not exceed one
hundred fifty percent, of the federal poverty line for the applicable
family size.

* NB Repealed October 1, 2024

(7-a) An individual is eligible for benchmark coverage if his or her
MAGI household income exceeds one hundred thirty-three percent of the
federal poverty line for the applicable family size and he or she:

(i) was eligible or would have been eligible for the family health
plus program without federal financial participation in the costs of
medical care and services under such program; and

(ii) is not eligible to enroll in a qualified health plan offered
through the state health benefit exchange established pursuant to the
federal Patient Protection and Affordable Care Act (P.L. 111-148), as
amended by the federal Health Care and Education Reconciliation Act of
2010 (P.L. 111-152).

(c) Non-MAGI eligibility groups. Individuals listed in this paragraph
are eligible for standard coverage. Where a financial eligibility
determination must be made by the medical assistance program for
individuals in these groups, such financial eligibility will be
determined in accordance with subdivision two of this section.

(1) An individual receiving or eligible to receive federal
supplemental security income payments and/or additional state payments
pursuant to title six of this article; any inconsistent provision of
this chapter or other law notwithstanding, the department may designate
the office of temporary and disability assistance as its agent to
discharge its responsibility, or so much of its responsibility as is
permitted by federal law, for determining eligibility for medical
assistance with respect to persons who are not eligible to receive
federal supplemental security income payments but who are receiving a
state administered supplementary payment or mandatory minimum supplement
in accordance with the provisions of subdivision one of section two
hundred twelve of this article.

(2) An individual who, although not receiving public assistance or
care for his or her maintenance under other provisions of this chapter,
has income and resources, including available support from responsible
relatives, that does not exceed the amounts set forth in paragraph (a)
of subdivision two of this section, and is (i) sixty-five years of age
or older, or certified blind or certified disabled or (ii) for reasons
other than income or resources, is eligible for federal supplemental
security income benefits and/or additional state payments.

(3) An individual who, although not receiving public assistance or
care for his or her maintenance under other provisions of this chapter,
has income, including available support from responsible relatives, that
does not exceed the amounts set forth in paragraph (a) of subdivision
two of this section, and is (i) under the age of twenty-one years, 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, 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.

(4) A child in foster care, or a child described in section four
hundred fifty-four or four hundred fifty-eight-d of this chapter.

(5) A disabled individual 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, other than retirement accounts, that do not exceed one
hundred fifty percent of the income amount permitted under subparagraph
seven of paragraph (a) of subdivision two of this section, for a
one-person or two-person household, as defined by the commissioner in
regulation; 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.

(6) An individual 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 five 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; or

(7) An individual receiving treatment for breast or cervical cancer
who meets the eligibility requirements of paragraph (d) of subdivision
four of this section or the presumptive eligibility requirements of
subdivision five of section three hundred sixty-four-i of this title.

(8) An individual receiving treatment for colon or prostate cancer who
meets the eligibility requirements of paragraph (e) of subdivision four
of this section or the presumptive eligibility requirements of
subdivision five of section three hundred sixty-four-i of this title.

(9) An individual who:

(i) is under twenty-six years of age; and

(ii) was in foster care under the responsibility of the state on his
or her eighteenth birthday; and

(iii) was in receipt of medical assistance under this title while in
foster care; and

(iv) is not otherwise eligible for medical assistance under this
title.

(10) 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, or in the case of a person sixty-five years of
age or older, certified blind, or certified disabled, 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.

(d) Conditions of eligibility. A person shall not be eligible for
medical assistance under this title unless he or she:

(1) 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

(2) assigns to the appropriate social services official or to 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; and

(3) cooperates with the appropriate social services official or the
department in establishing paternity or in establishing, modifying, or
enforcing a support order with respect to his or her child; 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 such cooperation if the
social services official or the department determines 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 one year period beginning on the last day of pregnancy, in
accordance with procedures and criteria established by regulations of
the department consistent with federal law; and

(4) applies for and utilizes group health insurance benefits available
through a current or former employer, including benefits for a spouse
and dependent children, in accordance with the regulations of the
department.

(e) Conditions of coverage. An otherwise eligible person shall not be
entitled to medical assistance coverage of care, services, and supplies
under this title while he or she:

(1) is an inmate or patient in an institution or facility wherein
medical assistance may not be provided in accordance with applicable
federal or state requirements, except for persons described in
subparagraph ten of paragraph (c) of this subdivision or subdivision
one-a or subdivision one-b of this section; or except for certain
services provided to persons in a correctional institution or facility
permitted by a waiver authorized pursuant to section eleven hundred
fifteen of the federal social security act; if, so long as, and to the
extent federal financial participation is available for such
expenditures provided pursuant to such waiver; or

(2) is a patient in a public institution operated primarily for the
treatment of tuberculosis or care of the mentally disabled, with the
exception of: (i) a person sixty-five years of age or older and a
patient in any such institution; (ii) a person under twenty-one years of
age and receiving in-patient psychiatric services in a public
institution operated primarily for the care of the mentally disabled;
(iii) a patient in a public institution operated primarily for the care
of individuals with developmental disabilities who 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; (iv) a patient
in an institution operated by the state department of mental hygiene,
while under care in a hospital on release from such institution for the
purpose of receiving care in such hospital; (v) is a person residing in
a community residence or a residential care center for adults; or (vi)
certain services provided to persons in an institution for mental
diseases permitted by a waiver authorized pursuant to section eleven
hundred fifteen of the federal social security act; if, so long as, and
to the extent federal financial participation is available for such
expenditures provided pursuant to such waiver.

(f) Notwithstanding any inconsistent provision of this title, for an
individual who has income in excess of an applicable income eligibility
standard and is allowed to achieve eligibility for medical assistance
under this title by incurring medical expenses equal to the amount of
such excess income, the amount of excess income may be calculated by
comparing the individual's MAGI household income to the MAGI-equivalent
of the applicable income eligibility standard; provided, however, that
medical assistance shall be furnished pursuant to this paragraph only
if, for so long as, and to the extent that federal financial
participation is available therefor. The commissioner of health shall
make any amendments to the state plan for medical assistance, or apply
for any waiver or approval under the federal social security act that
are necessary to carry out the provisions of this paragraph.

(g) Coverage of certain noncitizens. (1) Applicants and recipients
who are lawfully admitted for permanent residence, or who are
permanently residing in the United States under color of law, or who are
non-citizens in a valid nonimmigrant status, as defined in 8 U.S.C.
1101(a)(15); who are MAGI eligible pursuant to paragraph (b) of this
subdivision; and who would be ineligible for medical assistance coverage
under subdivisions one and two of section three hundred sixty-five-a of
this title solely due to their immigration status if the provisions of
section one hundred twenty-two of this chapter were applied, shall only
be eligible for assistance under this title if enrolled in a standard
health plan offered by a basic health program established pursuant to
section three hundred sixty-nine-gg of this article or a standard health
plan offered by a 1332 state innovation program established pursuant to
section three hundred sixty-nine-ii of this article if such program is
established and operating.

(2) With respect to a person described in subparagraph one of this
paragraph who is enrolled in a standard health plan, medical assistance
coverage shall mean:

(i) payment of required premiums and other cost-sharing obligations
under the standard health plan that exceed the person's co-payment
obligation under subdivision six of section three hundred sixty-seven-a
of this title; and

(ii) payment for services and supplies described in subdivision one or
two of section three hundred sixty-five-a of this title, as applicable,
but only to the extent that such services and supplies are not covered
by the standard health plan.

(3) Nothing in this subdivision shall prevent a person described in
subparagraph one of this paragraph from qualifying for or receiving
medical assistance while his or her enrollment in a standard health plan
is pending, in accordance with applicable provisions of this title.

(4) (a) Applicants and recipients who are age sixty-five or older, who
are otherwise eligible for medical assistance under this section, but
for their immigration status, are eligible for medical assistance
according to the following:

(b) individuals eligible for medical assistance pursuant to
subparagraph (a) of this paragraph shall participate in and receive
covered benefits available through a managed care provider under section
three hundred sixty-four-j of this article that is certified pursuant to
section forty-four hundred three of the public health law; provided,
however, to the extent that any covered benefits available through such
managed care providers as of January first, two thousand twenty-three
are transitioned to fee-for-service coverage, then such individuals
shall continue to be entitled to these benefits in the fee-for-service
program, rather than through a managed care provider.

1-a. Notwithstanding any other provision of law, in the event that a
person who is an incarcerated individual of a state or local
correctional facility, as defined in section two of the correction law,
or an eligible juvenile inmate of a public institution, as defined in
subsection (nn) of section nineteen hundred two of the social security
act, was in receipt of medical assistance pursuant to this title
immediately prior to being admitted to such facility or public
institution, or for juveniles determined eligible for such medical
assistance while an inmate of a public institution, such person shall
remain eligible for medical assistance while an incarcerated individual,
except that no medical assistance shall be furnished pursuant to this
title for any care, services, or supplies provided during such time as
the person is an incarcerated individual; provided, however, that
nothing herein shall be deemed as preventing the provision of medical
assistance for inpatient hospital services furnished to an incarcerated
individual at a hospital outside of the premises of such correctional
facility or public institution, or pursuant to other federal authority
authorizing the provision of medical assistance to an incarcerated
individual of a state or local correctional facility during the thirty
days prior to release, to the extent that federal financial
participation is available for the costs of such services. Upon release
from such facility or public institution, such person shall continue to
be eligible for receipt of medical assistance furnished pursuant to this
title until such time as the person is determined to no longer be
eligible for receipt of such assistance. To the extent permitted by
federal law, the time during which such person is an incarcerated
individual shall not be included in any calculation of when the person
must recertify his or her eligibility for medical assistance in
accordance with this article. The state may seek federal authority to
provide medical assistance for transitional services including but not
limited to medical, prescription, and care coordination services for
high needs incarcerated individuals in state and local correctional
facilities during the thirty days prior to release.

1-b. Notwithstanding any other provision of law, in the event that a
person who is an inpatient in an institution for mental diseases, as
defined by federal law and regulations, and who was in receipt of
medical assistance pursuant to this title immediately prior to being
admitted to such facility, or who was directly admitted to such facility
after being an inpatient in another institution for mental diseases and
who was in receipt of medical assistance prior to admission to such
transferring institution, such person shall remain eligible for medical
assistance while an inpatient in such facility; provided, however, that
no medical assistance shall be furnished pursuant to this title for any
care, services, or supplies provided during the time that such person is
an inpatient, except to the extent that federal financial participation
is available for the costs of such care, services, or supplies. Upon
release from such facility, such person shall continue to be eligible
for receipt of medical assistance furnished pursuant to this title until
such time as the person is determined to no longer be eligible for
receipt of such assistance. To the extent permitted by federal law, the
time during which such person is an inpatient in an institution for
mental diseases shall not be included in any calculation of when the
person must recertify his or her eligibility for medical assistance in
accordance with this article.

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) (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 and other long term care 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, in an amount to be determined by the secretary of the federal
department of health and human services, based on the percentage
increase in the consumer price index for all urban consumers, rounded to
the nearest one thousand dollars. If such secretary does not determine
such an amount, the department of health shall increase such dollar
amount based on such increase in the consumer price index. 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 such secretary. The
home equity limitation shall not apply if one or more of the following
persons is lawfully residing in the individual's homestead: (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 and totally disabled, as
defined in section 1614 of the federal social security act.

(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 one hundred fifty percent 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) (i) 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; and

(ii) such income of a disabled person (as such term is defined in
section 1614(a)(3) of the federal social security act (42 U.S.C. section
1382c(a)(3)) or in accordance with any other rules or regulations
established by the social security administration), that is deposited in
trusts as defined in clause (iii) of subparagraph two of paragraph (b)
of this subdivision in the same calendar month within which said income
is received;

(6) health insurance premiums;

(7) income based on the 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 and calculated as follows:

(i) 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
article rounded up to the next highest one hundred dollars for eligible
individuals and couples living alone, respectively.

(ii) The amounts for households of three or more shall be calculated
by increasing the income standard for a household of two, established
pursuant to clause (i) of this subparagraph, by fifteen percent for each
additional household member above two, such that the income standard for
a three-person household shall be one hundred fifteen percent of the
income standard for a two-person household, the income standard for a
four-person household shall be one hundred thirty percent of the income
standard for a two-person household, and so on.

(iii) 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 for people with
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 for people with
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.

(11) subject to the availability of federal financial participation,
any amount, including earnings thereon, in a qualified NY ABLE account
as established pursuant to article eighty-four of the mental hygiene
law, any contributions to such NY ABLE account, and any distribution for
qualified disability expenses from such account; provided however, that
such exemption shall be consistent with section 529A of the Internal
Revenue Code of 1986, as amended.

* NB Effective until January 1, 2023 subject to federal financial
participation

* (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) (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 and other long term care 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, in an amount to be determined by the secretary of the federal
department of health and human services, based on the percentage
increase in the consumer price index for all urban consumers, rounded to
the nearest one thousand dollars. If such secretary does not determine
such an amount, the department of health shall increase such dollar
amount based on such increase in the consumer price index. 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 such secretary. The
home equity limitation shall not apply if one or more of the following
persons is lawfully residing in the individual's homestead: (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 and totally disabled, as
defined in section 1614 of the federal social security act.

(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 one hundred fifty percent 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) (i) 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; and

(ii) such income of a disabled person (as such term is defined in
section 1614(a)(3) of the federal social security act (42 U.S.C. section
1382c(a)(3)) or in accordance with any other rules or regulations
established by the social security administration), that is deposited in
trusts as defined in clause (iii) of subparagraph two of paragraph (b)
of this subdivision in the same calendar month within which said income
is received;

(6) health insurance premiums;

(7) income based on the 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 that does not exceed one hundred thirty-eight
percent of the federal poverty line for the applicable family size,
which shall be calculated in accordance with guidance issued by the
United States secretary for health and human services and with other
applicable provisions of this section;

(8) 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 for people with
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 for people with
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.

(11) subject to the availability of federal financial participation,
any amount, including earnings thereon, in a qualified NY ABLE account
as established pursuant to article eighty-four of the mental hygiene
law, any contributions to such NY ABLE account, and any distribution for
qualified disability expenses from such account; provided however, that
such exemption shall be consistent with section 529A of the Internal
Revenue Code of 1986, as amended.

* NB Effective January 1, 2023 subject to federal financial
participation

* (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

* NB There are 2 sb 2 ¶(b)'s

* (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
the individual, 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 department of financial services, 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.

(vi) The department shall provide written notice to an applicant for
or recipient of medical assistance who is or reasonably appears to be
eligible for medical assistance except for having income exceeding
applicable income levels. The notice shall inform the applicant or
recipient, in plain language, that in certain circumstances the medical
assistance program does not count the income of disabled applicants and
recipients if it is placed in a trust described in clause (iii) of this
subparagraph. The notice shall be included with the eligibility notice
provided to such applicants and recipients and shall reference where
additional information may be found on the department's website. This
clause shall not be construed to change any criterion for eligibility
for medical assistance.

* NB There are 2 sb 2 ¶(b)'s

(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. Special eligibility provisions.

(a) Transitional medical assistance.

(1) Notwithstanding any other provision of law, each family which was
eligible for medical assistance pursuant to subparagraph four of
paragraph (b) of subdivision one of this section in at least one of the
six months immediately preceding the month in which such family became
ineligible for such assistance because of income from the employment of
the caretaker relative shall, while such family includes a dependent
child, remain eligible for medical assistance for twelve 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 four of paragraph (b) of
subdivision one of this section.

(2) (i) Upon giving notice of termination of medical assistance
provided pursuant to subparagraph four of paragraph (b) of subdivision
one of this section, the department shall notify each such family of its
rights to extended benefits under subparagraph one of this paragraph and
describe the conditions under which such extension may be terminated.

(ii) The department shall promulgate regulations implementing the
requirements of this subparagraph and subparagraph one of this paragraph
relating to the conditions under which extended coverage hereunder may
be terminated, the scope of coverage, and the conditions under which
coverage may be extended pending a redetermination of eligibility. Such
regulations shall, at a minimum, provide for: termination of such
coverage at the close of the first month in which the family ceases to
include a dependent child; notice of termination prior to the effective
date of any terminations; coverage under employee health plans and
health maintenance organizations; and disqualification of persons for
extended coverage benefits under this paragraph for fraud.

(3) Notwithstanding any inconsistent provision of law, each family
which was eligible for medical assistance pursuant to subparagraph four
of paragraph (b) 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 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 four of paragraph (b) of
subdivision one of this section for an additional four calendar months
beginning with the month ineligibility for such assistance begins.

(b) Pregnant women and children.

(1) A pregnant woman eligible for medical assistance under
subparagraph two or four of paragraph (b) of subdivision one of this
section on any day of her pregnancy will continue to be eligible for
such care and services for a period of one year beginning on the last
day of pregnancy, without regard to 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.

(2) A 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.

(3) 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:

(i) the last day of the month which is twelve months following the
determination or redetermination of eligibility for such assistance; or

(ii) the last day of the month in which the child reaches the age of
nineteen.

(4) An infant eligible under subparagraph two or four of paragraph (b)
of subdivision one of this section who is receiving medically necessary
in-patient services for which medical assistance is provided on the date
the child attains one year of age, and who, but for attaining such age,
would remain eligible for medical assistance under such subparagraph,
shall continue to remain eligible until the end of the stay for which
in-patient services are being furnished.

(5) A child eligible under subparagraph three of paragraph (b) of
subdivision one of this section 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 medical assistance under this paragraph,
shall continue to remain eligible until the end of the stay for which
in-patient services are being furnished.

(6) 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 for a period of
twenty-four months 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 are eligible for reimbursement by the federal government
at a rate of ninety percent; provided, however, that such ninety percent
limitation shall not apply to those services identified by the
commissioner as services, including treatment for sexually transmitted
diseases, generally performed as part of or as a follow-up to a service
eligible for such ninety percent reimbursement; and provided further,
however, that nothing in this paragraph shall be deemed to affect
payment for such Title X services if federal financial participation is
not available for such care, services and supplies.

(c) Continuous coverage for adults. Notwithstanding any other
provision of law, a person whose eligibility for medical assistance is
based on the modified adjusted gross income of the person or the
person's household, and who loses eligibility for such assistance for a
reason other than citizenship status, lack of state residence, or
failure to provide a valid social security number, before the end of a
twelve month period beginning on the effective date of the person's
initial eligibility for such assistance, or before the end of a twelve
month period beginning on the date of any subsequent determination of
eligibility based on modified adjusted gross income, shall have his or
her eligibility for such assistance continued until the end of such
twelve month period, provided that federal financial participation in
the costs of such assistance is available.

(d) Breast and cervical cancer treatment.

(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 one-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) (i) 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.

(ii) For purposes of determining eligibility for medical assistance
under this paragraph, resources available to such individual 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.

(iii) An individual shall be eligible for presumptive eligibility for
medical assistance under this paragraph in accordance with subdivision
five of section three hundred sixty-four-i of this title.

(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.

(e) Colon and prostate cancer treatment.

(1) Notwithstanding any other provision of law to the contrary, a
person who has been screened or referred for screening for colon or
prostate cancer by the cancer services screening program, as
administered by the department of health, and has been diagnosed with
colon or prostate cancer is eligible for medical assistance for the
duration of his or her treatment for such cancer.

(2) Persons eligible for medical assistance under this paragraph shall
have an income of two hundred fifty percent or less of the comparable
federal income official poverty line as defined and annually revised by
the federal office of management and budget.

(3) An individual shall be eligible for presumptive eligibility for
medical assistance under this paragraph in accordance with subdivision
five of section three hundred sixty-four-i of this title.

(4) Medical assistance is available under this paragraph to persons
who are under sixty-five years of age, and are not otherwise covered
under creditable coverage as defined in the federal Public Health
Service Act.

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 paragraphs (b), (c),
(d) and (e) 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 individuals with developmental disabilities, 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 individuals with developmental
disabilities" 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 individuals with developmental disabilities.

(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 and 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 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, or in the case
of a non-institutionalized individual, subject to federal approval, the
thirty-month period immediately preceding the date that such
non-institutionalized individual applies for medical assistance coverage
of long term care services. Nothing herein precludes a review of
eligibility for retroactive authorization for medical expenses incurred
during the three months prior to the month of application for medical
assistance.

(vii) "institutionalized individual" means any individual who is an
in-patient in a nursing facility, including an intermediate care
facility for individuals with developmental disabilities, 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 described in section
1902(a)(10)(A)(ii)(VI) of the federal social security act.

(viii) "intermediate care facility for individuals with developmental
disabilities" 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 individuals with developmental disabilities.

(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 or successor federal waiver.

(xi) "non-institutionalized individual" means an individual who is not
an institutionalized individual, as defined in clause (vii) of this
subparagraph.

(xii) "long term care services" means home health care services,
private duty nursing services, personal care services, assisted living
program services and such other services for which medical assistance is
otherwise available under this chapter which are designated as long term
care services in the regulations of the department.

(2) The uncompensated value of an asset is the fair market value of
such asset at the time of transfer less any outstanding loans,
mortgages, or other encumbrances on the asset, 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 five of this paragraph. In determining the medical
assistance eligibility of a non-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 community based long term
care services for the period of time specified in subparagraph five 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 the
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 a community spouse or minor or
disabled child and is named in the first position if such spouse or a
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 was 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 would deprive the
individual of medical care such that the individual's health or life
would be endangered, or would deprive the individual of food, clothing,
shelter, or other necessities of life. The commissioner of health 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 health 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.

(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 department. 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 where the applicant resides, as established
pursuant to paragraph (b) of subdivision sixteen of section twenty-eight
hundred seven-c of the public health law. 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
otherwise eligible 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.

(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 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 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 the payment
to the individual is foreclosed.

(f) The commissioner shall promulgate such rules and regulations as
may be necessary to carry out the provisions of this subdivision.

* 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.

b. A person eligible for participation in the waiver program shall:

(i) be twenty-one 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) require the level of care provided by a nursing facility or by a
hospital;

(iv) 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;

(v) meet the requirements of paragraph i of this subdivision; and

(vi) 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 and d 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 and c 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; (iv)
hospice and palliative care services; and (v) 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 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 department of health shall
determine that the annual medical assistance expenditures for home and
community-based services for all persons participating in the waiver
program would not exceed the annual medical assistance expenditures for
nursing facility and hospital services for all such persons 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 March 31, 2028

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 twenty-one 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 the
office for people with 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
the office for people with 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 for
people with 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 the office for people
with developmental disabilities as required by paragraph d of this
subdivision.

f. The commissioner of health, in conjunction with the commissioner of
the office for people with 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
for people with 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 the office for people with
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 for people with 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 for people with
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
the office for people with 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 the
office for people with 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.

7-a. a. The commissioner of health in consultation with the
commissioner of developmental disabilities 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 for a population of persons with
developmental disabilities, as such term is defined in section 1.03 of
the mental hygiene law.

b. Persons eligible for participation in the waiver program shall:

(i) have a developmental disability as such term is defined in
subdivision twenty-two of section 1.03 of the mental hygiene law;

(ii) meet the level of care criteria provided by an intermediate care
facility for the developmentally disabled;

(iii) be eligible for Medicaid;

(iv) live at home or in an individualized residential alternative,
community residence or family care home, operated or licensed by the
office for people with developmental disabilities;

(v) be capable of being cared for in the community if provided with
such services as respite, home adaptation, or 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 c of this subdivision;

(vi) have a demonstrated need for home and community based waiver
services; and

(vii) meet such other criteria as may be established by the
commissioner of health and the commissioner of developmental
disabilities, as may be necessary to administer the provisions of this
subdivision.

c. The commissioner of developmental disabilities shall assess the
eligibility of persons enrolled, or seeking to enroll, in the waiver
program. 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 person centered plan of care
for such person.

d. The office for people with developmental disabilities shall
undertake or arrange for the development of a written person centered
plan of care for each person enrolled in the waiver. Such person
centered plan of care shall describe the provision of home and community
based waiver services consistent with the assessment for each person.

e. The office for people with developmental disabilities shall review
the person centered plan of care and authorize those home and community
based services to be included in the person centered plan of care,
taking into account the person's assessed needs, valued outcomes and
available resources.

f. The commissioners of developmental disabilities and health shall
determine quality standards for organizations providing services under
such waiver and shall authorize organizations that meet such standards
to provide such services.

g. The commissioner of developmental disabilities or health may
promulgate rules and regulations as necessary to effectuate the
provisions of this section.

h. This subdivision shall be effective only if, and as long as,
federal financial participation is available for expenditures incurred
under this subdivision.

7-b. Services and needs assessment. The assessment completed pursuant
to subdivision seven-a of this section shall be based upon a valid and
reliable assessment tool. The assessment shall also include an
evaluation of the individual's home environment, including but not
limited to, the ability of family and/or caregivers to provide supports
outside of those within the waiver, including but not limited to,
activities of daily living.

7-c. The commissioner of health in consultation with the commissioner
of developmental disabilities is authorized to submit the appropriate
waivers, including, but not limited to, those authorized pursuant to
section eleven hundred fifteen of the federal social security act, in
order to achieve the purposes of high-quality and integrated care and
services for a population of persons with developmental disabilities, as
such term is defined in section 1.03 of the mental hygiene law. Such
waiver applications shall be executed consistent with subdivisions
seven, seven-a, and seven-b of this section, to the extent those
sections comply with the requirements of section eleven hundred fifteen
of the federal social security act. Nothing in subdivision seven of this
section shall prevent the commissioner of health, in consultation with
the commissioner of developmental disabilities, from submitting waiver
applications expanding eligibility under such waivers to children under
eighteen years or age who are eligible for medical assistance.

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 twenty-one 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.

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 or participation in the kinship
guardianship assistance program under title ten of article six of this
chapter.

13. The commissioner of health, in consultation with the commissioner
of the office of children and family services, shall make any available
amendments to the state plan for medical assistance submitted pursuant
to section three hundred sixty-three-a of this title, or, if an
amendment is not possible, develop and submit an application for any
waiver under the federal social security act that may be available to
provide medical assistance for those children receiving kinship
guardianship assistance payments under title ten of article six of this
chapter who are not automatically eligible for such medical assistance
under title IV-E of the federal social security act.

14. The commissioner of health may make any available amendments to
the state plan for medical assistance submitted pursuant to section
three hundred sixty-three-a of this title, or, if an amendment is not
possible, develop and submit an application for any waiver or approval
under the federal social security act that may be necessary to disregard
or exempt an amount of income, for the purpose of assisting with housing
costs, for individuals receiving coverage of nursing facility services
under this title, other than short-term rehabilitation services, and for
individuals in receipt of medical assistance while in an adult home, as
defined in subdivision twenty-five of section two of this chapter, who:
are (i) discharged to the community; and (ii) if eligible, enrolled or
required to enroll and have initiated the process of enrolling in a plan
certified pursuant to section forty-four hundred three-f of the public
health law; and (iii) do not meet the criteria to be considered an
"institutionalized spouse" for purposes of section three hundred
sixty-six-c of this title.

15. The commissioner may contract with one or more entities to engage
in education, outreach services, and facilitated enrollment activities
for aged, blind, and disabled persons who may be eligible for coverage
under this title.

* 16. (a) The commissioner of health is authorized to submit the
appropriate waivers and/or any other required requests for federal
approval, including but not limited to, those authorized in section
eleven hundred fifteen of the federal social security act, in order to
establish expanded medical assistance eligibility for working disabled
individuals. Such waiver applications shall be executed consistent with
paragraphs (b), (c), (d) and (e) of this subdivision, to the extent
those sections comply with the requirements of section eleven hundred
fifteen of the federal social security act. Notwithstanding
subparagraphs five and six of paragraph (c) of subdivision one of this
section and subdivision twelve of section three hundred sixty-seven-a of
this title, or any other provision of law to the contrary, if granted
such waiver, the commissioner of health may authorize eligible persons
to receive medical assistance pursuant to the waiver if, for so long as,
and to the extent that, financial participation is available therefor.
The waiver application shall provide for thirty thousand persons to be
eligible to participate in such waiver.

(b) Individuals eligible for participation in such waiver shall:

(i) be a disabled individual, defined as having a medically
determinable impairment of sufficient severity and duration to qualify
for benefits under Titles II or XVI of the social security act;

(ii) be at least sixteen years of age;

(iii) be otherwise eligible for medical assistance benefits, but for
earnings and/or resources in excess of the allowable limit;

(iv) have net available income, determined in accordance with
subdivision two of this section, that does not exceed two thousand two
hundred fifty percent of the applicable federal poverty line, as defined
and updated by the United States department of health and human
services;

(v) have resources, as defined in paragraph (e) of subdivision two of
section three hundred sixty-six-c of this title, other than retirement
accounts, that do not exceed three hundred thousand dollars;

(vi) contribute to the cost of medical assistance provided pursuant to
this paragraph in accordance with paragraph (d) of this subdivision; and

(vii) 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) An individual at least sixteen years of age who: is employed;
ceases to be eligible for participation in such waiver pursuant to
paragraph (b) of this subdivision because the person, by reason of
medical improvement, is determined at the time of a regularly scheduled
continuing disability review to no longer be certified as disabled 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 paragraph in accordance with paragraph (d) of
this subdivision, shall be eligible for participation in such waiver.
For purposes of this paragraph, 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.

(d) Prior to receiving medical assistance pursuant to such waiver, a
person whose net available income is greater than or equal to two
hundred fifty percent of the applicable federal poverty line shall pay a
monthly premium, in accordance with a procedure to be established by the
commissioner, provided that no enrollee shall pay a monthly premium that
exceeds exceed eight and one-half percent of the enrollee's monthly
income. The amount of such premium for a person whose net available
income is greater than or equal to two hundred fifty percent of the
applicable federal poverty line, but less than three hundred percent of
the applicable federal poverty line shall be three hundred and
forty-seven dollars but shall not exceed four percent of the enrollee's
monthly income. The amount of such premium for a person whose net
available income is greater than or equal to three hundred percent of
the applicable federal poverty line, but less than four hundred percent
of the applicable federal poverty line shall be five hundred eighteen
dollars but shall not exceed six percent of the enrollee's monthly
income. The amount of such premium for a person whose net available
income is greater than or equal to four hundred percent of the
applicable federal poverty line, but less than five hundred percent of
the applicable federal poverty line shall be seven hundred and
seventy-nine dollars but shall not exceed eight and one-half percent of
the enrollee's monthly income. The amount of such premium for a person
whose net available income is equal to or greater than five hundred
percent of the applicable federal poverty line shall be one thousand
thirty-three dollars but shall not exceed eight and one-half percent of
the enrollee's monthly income. No premium shall be required from a
person whose net available income is less than two hundred fifty percent
of the applicable federal poverty line.

(e) Notwithstanding any other provision of this section or any other
law to the contrary, for purposes of determining medical assistance
eligibility for persons specified in paragraph (b) or (c) of this
subdivision, the income and resources of responsible relatives shall not
be deemed available for as long as the person meets the criteria
specified in this subdivision.

* NB Effective January 1, 2025