§ 366 — Eligibility

New York § 366

• Jurisdiction: New York
• Law SOS: Social Services
• Title 11: Medical Assistance For Needy Persons
• Art. 5: Assistance and Care

Text

§ 366. Eligibility. 1. (a) Definitions. For purposes of this section:\n (1) "benchmark coverage" refers to medical assistance coverage defined\nin subdivision one of section three hundred sixty-five-a of this title;\n (2) "caretaker relative" means a relative of a dependent child by\nblood, adoption, or marriage with whom the child is living, who assumes\nprimary responsibility for the child's care and who is one of the\nfollowing:\n (i) the child's father, mother, grandfather, grandmother, brother,\nsister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt,\nfirst cousin, nephew, or niece; or\n (ii) the spouse of such parent or relative, even after the marriage is\nterminated by death or divorce;\n (3) "family size" means the number of persons counted as members of an\nindividual's household; with respect to individuals whose medical\nassistance eligibility is based on modified adjusted gross income, in\ndetermining the family size of a pregnant woman, or of other individuals\nwho have a pregnant woman in their household, the pregnant woman is\ncounted as herself plus the number of children she is expected to\ndeliver;\n (4) "federal poverty line" means the poverty line defined and annually\nrevised by the United States department of health and human services;\n (5) "household", for purposes of determining the financial eligibility\nof individuals whose medical assistance eligibility is based on modified\nadjusted gross income, shall mean:\n (i) Basic rule for taxpayers not claimed as a tax dependent. In the\ncase of an individual who expects to file a tax return for the taxable\nyear in which an initial determination or renewal of eligibility is\nbeing made, and who does not expect to be claimed as a tax dependent by\nanother taxpayer, the household consists of the taxpayer and, subject to\nclause (v) of this subparagraph, all persons whom such individual\nexpects to claim as a tax dependent;\n (ii) Basic rule for individuals claimed as a tax dependent. In the\ncase of an individual who expects to be claimed as a tax dependent by\nanother taxpayer for the taxable year in which an initial determination\nor renewal of eligibility is being made, the household is the household\nof the taxpayer claiming such individual as a tax dependent, except that\nthe household must be determined in accordance with clause (iii) of this\nsubparagraph in the case of:\n (A) Individuals other than a spouse or child who expect to be claimed\nas a tax dependent by another taxpayer; and\n (B) Individuals under nineteen years of age, or under twenty-one years\nof age if a full-time student, who expect to be claimed by one parent as\na tax dependent and are living with both parents but whose parents do\nnot expect to file a joint tax return; and\n (C) Individuals under nineteen years of age, or under twenty-one years\nof age if a full-time student, who expect to be claimed as a tax\ndependent by a non-custodial parent. For purposes of this subclause:\n (1) A court order or binding separation, divorce, or custody agreement\nestablishing physical custody controls; or\n (2) If there is no such order or agreement or in the event of a shared\ncustody agreement, the custodial parent is the parent with whom the\nchild spends most nights;\n (iii) Rules for individuals who neither file a tax return nor are\nclaimed as a tax dependent. In the case of individuals who do not expect\nto file a Federal tax return and do not expect to be claimed as a tax\ndependent for the taxable year in which an initial determination or\nrenewal of eligibility is being made, or who are described in subclauses\n(A), (B), or (C) of clause (ii) of this subparagraph, the household\nconsists of the individual and, if living with the individual:\n (A) The individual's spouse;\n (B) The individual's children under nineteen years of age, or under\ntwenty-one years of age if a full-time student; and\n (C) In the case of an individual under nineteen years of age, or under\ntwenty-one years of age if a full-time student, the individual's parents\nand the individual's siblings under nineteen years of age, or under\ntwenty-one years of age if a full-time student;\n (iv) Married couples. In the case of a married couple living together,\neach spouse will be included in the household of the other spouse,\nregardless of whether they expect to file a joint tax return under\nsection six thousand thirteen of the internal revenue code or whether\none spouse expects to be claimed as a tax dependent by the other spouse.\n (v) For purposes of clause (i) of this subparagraph, if a taxpayer\ncannot reasonably establish that another individual is a tax dependent\nof the taxpayer for the tax year in which Medicaid is sought, the\ninclusion of such individual in the household of the taxpayer is\ndetermined in accordance with clause (iii) of this subparagraph.\n (6) "MAGI" means modified adjusted gross income;\n (7) "MAGI-based income" means income calculated using the same\nmethodologies used to determine MAGI under section 36B(d)(2)(B) of the\nInternal Revenue Code, with the exception of lump sum payments, certain\neducational scholarships, and certain American Indian and Alaska Native\nincome, as specified by the commissioner of health consistent with\nfederal regulation at 42 CFR 435.603 or any successor regulation;\n (8) "MAGI household income" means, with respect to an individual whose\nmedical assistance eligibility is based on modified adjusted gross\nincome, the sum of the MAGI-based income of every person included in the\nindividual's MAGI household, except that it shall not include the\nMAGI-based income of the following persons if such persons are not\nexpected to be required to file a tax return in the taxable year in\nwhich eligibility for medical assistance is being determined:\n (i) a biological, adopted, or step child who is included in the\nindividual's MAGI household; or\n (ii) a person, other than a spouse or a biological, adopted, or step\nchild, who is expected to be claimed as a tax dependent by the\nindividual;\n (9) "standard coverage" refers to medical assistance coverage defined\nin subdivision two of section three hundred sixty-five-a of this title.\n (b) MAGI eligibility groups. Individuals listed in this paragraph are\neligible for medical assistance based on modified adjusted gross income.\nIn determining the eligibility of an individual for the MAGI eligibility\ngroup with the highest income standard under which the individual may\nqualify, an amount equivalent to five percentage points of the federal\npoverty level for the applicable family size will be deducted from the\nhousehold income.\n (1) An individual is eligible for benchmark coverage if his or her\nMAGI household income does not exceed one hundred thirty-three percent\nof the federal poverty line for the applicable family size and he or she\nis:\n (i) age nineteen or older and under age sixty-five; and\n (ii) not pregnant; and\n (iii) not entitled to or enrolled for benefits under parts A or B of\ntitle XVIII of the federal social security act; and\n (iv) not otherwise eligible for and receiving coverage under\nsubparagraphs two and three of this paragraph; and\n (v) not a parent or other caretaker relative of a dependent child\nunder twenty-one years of age and living with such child, unless such\nchild is receiving benefits under this title or under title 1-A of\narticle twenty-five of the public health law, or otherwise is enrolled\nin minimum essential coverage.\n (2) A pregnant woman or an infant younger than one year of age is\neligible for standard coverage if his or her MAGI household income does\nnot exceed the MAGI-equivalent of two hundred percent of the federal\npoverty line for the applicable family size, which shall be calculated\nin accordance with guidance issued by the secretary of the United States\ndepartment of health and human services, or an infant younger than one\nyear of age who meets the presumptive eligibility requirements of\nsubdivision four of section three hundred sixty-four-i of this title.\n (3) A child who is at least one year of age but younger than nineteen\nyears of age is eligible for standard coverage if his or her MAGI\nhousehold income does not exceed the MAGI-equivalent of one hundred\nthirty-three percent of the federal poverty line for the applicable\nfamily size, which shall be calculated in accordance with guidance\nissued by the Secretary of the United States department of health and\nhuman services, or a child who is at least one year of age but younger\nthan nineteen years of age who meets the presumptive eligibility\nrequirements of subdivision four of section three hundred sixty-four-i\nof this title.\n (4) An individual who is a pregnant woman or is a member of a family\nthat contains a dependent child living with a parent or other caretaker\nrelative is eligible for standard coverage if their MAGI household\nincome does not exceed one hundred thirty-three percent of the federal\npoverty line for the applicable family size, which shall be calculated\nin accordance with guidance issued by the Secretary of the United States\ndepartment of health and human services; for purposes of this\nsubparagraph, the term dependent child means a person who is under\neighteen years of age, or is eighteen years of age and a full-time\nstudent, who is deprived of parental support or care by reason of the\ndeath, continued absence, or physical or mental incapacity of a parent,\nor by reason of the unemployment of the parent, as defined by the\ndepartment of health.\n (5) A child who is under twenty-one years of age and who was in foster\ncare under the responsibility of the state on his or her eighteenth\nbirthday is eligible for standard coverage; notwithstanding any\nprovision of law to the contrary, the provisions of this subparagraph\nshall be effective only if and for so long as federal financial\nparticipation is available in the costs of medical assistance furnished\nhereunder.\n (6) An individual who is not otherwise eligible for medical assistance\nunder this section is eligible for coverage of family planning services\nreimbursed by the federal government at a rate of ninety percent, and\nfor coverage of those services identified by the commissioner of health\nas services generally performed as part of or as a follow-up to a\nservice eligible for such ninety percent reimbursement, including\ntreatment for sexually transmitted diseases, if his or her income does\nnot exceed the MAGI-equivalent of two hundred percent of the federal\npoverty line for the applicable family size, which shall be calculated\nin accordance with guidance issued by the secretary of the United States\ndepartment of health and human services; provided further that the\ncommissioner of health is authorized to establish criteria for\npresumptive eligibility for services provided pursuant to this\nsubparagraph in accordance with all applicable requirements of federal\nlaw or regulation pertaining to such eligibility.\n * (7) A child who is nineteen or twenty years of age living with his\nor her parent will be eligible for standard coverage if the sum of the\nMAGI-based income of every person included in the child's MAGI household\nexceeds one hundred thirty-three percent, but does not exceed one\nhundred fifty percent, of the federal poverty line for the applicable\nfamily size.\n * NB Repealed October 1, 2029\n (7-a) An individual is eligible for benchmark coverage if his or her\nMAGI household income exceeds one hundred thirty-three percent of the\nfederal poverty line for the applicable family size and he or she:\n (i) was eligible or would have been eligible for the family health\nplus program without federal financial participation in the costs of\nmedical care and services under such program; and\n (ii) is not eligible to enroll in a qualified health plan offered\nthrough the state health benefit exchange established pursuant to the\nfederal Patient Protection and Affordable Care Act (P.L. 111-148), as\namended by the federal Health Care and Education Reconciliation Act of\n2010 (P.L. 111-152).\n (c) Non-MAGI eligibility groups. Individuals listed in this paragraph\nare eligible for standard coverage. Where a financial eligibility\ndetermination must be made by the medical assistance program for\nindividuals in these groups, such financial eligibility will be\ndetermined in accordance with subdivision two of this section.\n (1) An individual receiving or eligible to receive federal\nsupplemental security income payments and/or additional state payments\npursuant to title six of this article; any inconsistent provision of\nthis chapter or other law notwithstanding, the department may designate\nthe office of temporary and disability assistance as its agent to\ndischarge its responsibility, or so much of its responsibility as is\npermitted by federal law, for determining eligibility for medical\nassistance with respect to persons who are not eligible to receive\nfederal supplemental security income payments but who are receiving a\nstate administered supplementary payment or mandatory minimum supplement\nin accordance with the provisions of subdivision one of section two\nhundred twelve of this article.\n (2) An individual who, although not receiving public assistance or\ncare for his or her maintenance under other provisions of this chapter,\nhas income and resources, including available support from responsible\nrelatives, that does not exceed the amounts set forth in paragraph (a)\nof subdivision two of this section, and is (i) sixty-five years of age\nor older, or certified blind or certified disabled or (ii) for reasons\nother than income or resources, is eligible for federal supplemental\nsecurity income benefits and/or additional state payments.\n (3) An individual who, although not receiving public assistance or\ncare for his or her maintenance under other provisions of this chapter,\nhas income, including available support from responsible relatives, that\ndoes not exceed the amounts set forth in paragraph (a) of subdivision\ntwo of this section, and is (i) under the age of twenty-one years, or\n(ii) a spouse of a cash public assistance recipient living with him or\nher and essential or necessary to his or her welfare and whose needs are\ntaken into account in determining the amount of his or her cash payment,\nor (iii) for reasons other than income, would meet the eligibility\nrequirements of the aid to dependent children program as it existed on\nthe sixteenth day of July, nineteen hundred ninety-six.\n (4) A child in foster care, or a child described in section four\nhundred fifty-four or four hundred fifty-eight-d of this chapter.\n (5) A disabled individual at least sixteen years of age, but under the\nage of sixty-five, who: would be eligible for benefits under the\nsupplemental security income program but for earnings in excess of the\nallowable limit; has net available income that does not exceed two\nhundred fifty percent of the applicable federal income official poverty\nline, as defined and updated by the United States department of health\nand human services, for a one-person or two-person household, as defined\nby the commissioner in regulation; has household resources, as defined\nin paragraph (e) of subdivision two of section three hundred sixty-six-c\nof this title, other than retirement accounts, that do not exceed one\nhundred fifty percent of the income amount permitted under subparagraph\nseven of paragraph (a) of subdivision two of this section, for a\none-person or two-person household, as defined by the commissioner in\nregulation; and contributes to the cost of medical assistance provided\npursuant to this subparagraph in accordance with subdivision twelve of\nsection three hundred sixty-seven-a of this title; for purposes of this\nsubparagraph, disabled means having a medically determinable impairment\nof sufficient severity and duration to qualify for benefits under\nsection 1902(a)(10)(A)(ii)(xv) of the social security act.\n (6) An individual at least sixteen years of age, but under the age of\nsixty-five, who: is employed; ceases to be in receipt of medical\nassistance under subparagraph five of this paragraph because the person,\nby reason of medical improvement, is determined at the time of a\nregularly scheduled continuing disability review to no longer be\neligible for supplemental security income program benefits or disability\ninsurance benefits under the social security act; continues to have a\nsevere medically determinable impairment, to be determined in accordance\nwith applicable federal regulations; and contributes to the cost of\nmedical assistance provided pursuant to this subparagraph in accordance\nwith subdivision twelve of section three hundred sixty-seven-a of this\ntitle; for purposes of this subparagraph, a person is considered to be\nemployed if the person is earning at least the applicable minimum wage\nunder section six of the federal fair labor standards act and working at\nleast forty hours per month; or\n (7) An individual receiving treatment for breast or cervical cancer\nwho meets the eligibility requirements of paragraph (d) of subdivision\nfour of this section or the presumptive eligibility requirements of\nsubdivision five of section three hundred sixty-four-i of this title.\n (8) An individual receiving treatment for colon or prostate cancer who\nmeets the eligibility requirements of paragraph (e) of subdivision four\nof this section or the presumptive eligibility requirements of\nsubdivision five of section three hundred sixty-four-i of this title.\n (9) An individual who:\n (i) is under twenty-six years of age; and\n (ii) was in foster care under the responsibility of the state on his\nor her eighteenth birthday; and\n (iii) was in receipt of medical assistance under this title while in\nfoster care; and\n (iv) is not otherwise eligible for medical assistance under this\ntitle.\n (10) A resident of a home for adults operated by a social services\ndistrict, or a residential care center for adults or community residence\noperated or certified by the office of mental health, and has not,\naccording to criteria promulgated by the department consistent with this\ntitle, sufficient income, or in the case of a person sixty-five years of\nage or older, certified blind, or certified disabled, sufficient income\nand resources, including available support from responsible relatives,\nto meet all the costs of required medical care and services available\nunder this title.\n (d) Conditions of eligibility. A person shall not be eligible for\nmedical assistance under this title unless he or she:\n (1) is a resident of the state, or, while temporarily in the state,\nrequires immediate medical care which is not otherwise available,\nprovided that such person did not enter the state for the purpose of\nobtaining such medical care; and\n (2) assigns to the appropriate social services official or to the\ndepartment, in accordance with department regulations: (i) any benefits\nwhich are available to him or her individually from any third party for\ncare or other medical benefits available under this title and which are\notherwise assignable pursuant to a contract or any agreement with such\nthird party; or (ii) any rights, of the individual or of any other\nperson who is eligible for medical assistance under this title and on\nwhose behalf the individual has the legal authority to execute an\nassignment of such rights, to support specified as support for the\npurpose of medical care by a court or administrative order; and\n (3) cooperates with the appropriate social services official or the\ndepartment in establishing paternity or in establishing, modifying, or\nenforcing a support order with respect to his or her child; provided,\nhowever, that nothing herein contained shall be construed to require a\npayment under this title for care or services, the cost of which may be\nmet in whole or in part by a third party; notwithstanding the foregoing,\na social services official shall not require such cooperation if the\nsocial services official or the department determines that such actions\nwould be detrimental to the best interest of the child, applicant, or\nrecipient, or with respect to pregnant women during pregnancy and during\nthe one year period beginning on the last day of pregnancy, in\naccordance with procedures and criteria established by regulations of\nthe department consistent with federal law; and\n (4) applies for and utilizes group health insurance benefits available\nthrough a current or former employer, including benefits for a spouse\nand dependent children, in accordance with the regulations of the\ndepartment.\n (e) Conditions of coverage. An otherwise eligible person shall not be\nentitled to medical assistance coverage of care, services, and supplies\nunder this title while he or she:\n (1) is an inmate or patient in an institution or facility wherein\nmedical assistance may not be provided in accordance with applicable\nfederal or state requirements, except for persons described in\nsubparagraph ten of paragraph (c) of this subdivision or subdivision\none-a or subdivision one-b of this section; or except for certain\nservices provided to persons in a correctional institution or facility\npermitted by a waiver authorized pursuant to section eleven hundred\nfifteen of the federal social security act; if, so long as, and to the\nextent federal financial participation is available for such\nexpenditures provided pursuant to such waiver; or\n (2) is a patient in a public institution operated primarily for the\ntreatment of tuberculosis or care of the mentally disabled, with the\nexception of: (i) a person sixty-five years of age or older and a\npatient in any such institution; (ii) a person under twenty-one years of\nage and receiving in-patient psychiatric services in a public\ninstitution operated primarily for the care of the mentally disabled;\n(iii) a patient in a public institution operated primarily for the care\nof individuals with developmental disabilities who is receiving medical\ncare or treatment in that part of such institution that has been\napproved pursuant to law as a hospital or nursing home; (iv) a patient\nin an institution operated by the state department of mental hygiene,\nwhile under care in a hospital on release from such institution for the\npurpose of receiving care in such hospital; (v) is a person residing in\na community residence or a residential care center for adults; or (vi)\ncertain services provided to persons in an institution for mental\ndiseases permitted by a waiver authorized pursuant to section eleven\nhundred fifteen of the federal social security act; if, so long as, and\nto the extent federal financial participation is available for such\nexpenditures provided pursuant to such waiver.\n (f) Notwithstanding any inconsistent provision of this title, for an\nindividual who has income in excess of an applicable income eligibility\nstandard and is allowed to achieve eligibility for medical assistance\nunder this title by incurring medical expenses equal to the amount of\nsuch excess income, the amount of excess income may be calculated by\ncomparing the individual's MAGI household income to the MAGI-equivalent\nof the applicable income eligibility standard; provided, however, that\nmedical assistance shall be furnished pursuant to this paragraph only\nif, for so long as, and to the extent that federal financial\nparticipation is available therefor. The commissioner of health shall\nmake any amendments to the state plan for medical assistance, or apply\nfor any waiver or approval under the federal social security act that\nare necessary to carry out the provisions of this paragraph.\n (g) Coverage of certain noncitizens. (1) Applicants and recipients\nwho are lawfully admitted for permanent residence, or who are\npermanently residing in the United States under color of law, or who are\nnon-citizens in a valid nonimmigrant status, as defined in 8 U.S.C.\n1101(a)(15); who are MAGI eligible pursuant to paragraph (b) of this\nsubdivision; and who would be ineligible for medical assistance coverage\nunder subdivisions one and two of section three hundred sixty-five-a of\nthis title solely due to their immigration status if the provisions of\nsection one hundred twenty-two of this chapter were applied, shall only\nbe eligible for assistance under this title if enrolled in a standard\nhealth plan offered by a basic health program established pursuant to\nsection three hundred sixty-nine-gg of this article or a standard health\nplan offered by a 1332 state innovation program established pursuant to\nsection three hundred sixty-nine-ii of this article if such program is\nestablished and operating.\n (2) With respect to a person described in subparagraph one of this\nparagraph who is enrolled in a standard health plan, medical assistance\ncoverage shall mean:\n (i) payment of required premiums and other cost-sharing obligations\nunder the standard health plan that exceed the person's co-payment\nobligation under subdivision six of section three hundred sixty-seven-a\nof this title; and\n (ii) payment for services and supplies described in subdivision one or\ntwo of section three hundred sixty-five-a of this title, as applicable,\nbut only to the extent that such services and supplies are not covered\nby the standard health plan.\n (3) Nothing in this subdivision shall prevent a person described in\nsubparagraph one of this paragraph from qualifying for or receiving\nmedical assistance while his or her enrollment in a standard health plan\nis pending, in accordance with applicable provisions of this title.\n (4) (a) Applicants and recipients who are age sixty-five or older, who\nare otherwise eligible for medical assistance under this section, but\nfor their immigration status, are eligible for medical assistance\naccording to the following:\n (b) individuals eligible for medical assistance pursuant to\nsubparagraph (a) of this paragraph shall participate in and receive\ncovered benefits available through a managed care provider under section\nthree hundred sixty-four-j of this article that is certified pursuant to\nsection forty-four hundred three of the public health law; provided,\nhowever, to the extent that any covered benefits available through such\nmanaged care providers as of January first, two thousand twenty-three\nare transitioned to fee-for-service coverage, then such individuals\nshall continue to be entitled to these benefits in the fee-for-service\nprogram, rather than through a managed care provider.\n 1-a. Notwithstanding any other provision of law, in the event that a\nperson who is an incarcerated individual of a state or local\ncorrectional facility, as defined in section two of the correction law,\nor an eligible juvenile inmate of a public institution, as defined in\nsubsection (nn) of section nineteen hundred two of the social security\nact, was in receipt of medical assistance pursuant to this title\nimmediately prior to being admitted to such facility or public\ninstitution, or for juveniles determined eligible for such medical\nassistance while an inmate of a public institution, such person shall\nremain eligible for medical assistance while an incarcerated individual,\nexcept that no medical assistance shall be furnished pursuant to this\ntitle for any care, services, or supplies provided during such time as\nthe person is an incarcerated individual; provided, however, that\nnothing herein shall be deemed as preventing the provision of medical\nassistance for inpatient hospital services furnished to an incarcerated\nindividual at a hospital outside of the premises of such correctional\nfacility or public institution, or pursuant to other federal authority\nauthorizing the provision of medical assistance to an incarcerated\nindividual of a state or local correctional facility during the thirty\ndays prior to release, to the extent that federal financial\nparticipation is available for the costs of such services. Upon release\nfrom such facility or public institution, such person shall continue to\nbe eligible for receipt of medical assistance furnished pursuant to this\ntitle until such time as the person is determined to no longer be\neligible for receipt of such assistance. To the extent permitted by\nfederal law, the time during which such person is an incarcerated\nindividual shall not be included in any calculation of when the person\nmust recertify his or her eligibility for medical assistance in\naccordance with this article. The state may seek federal authority to\nprovide medical assistance for transitional services including but not\nlimited to medical, prescription, and care coordination services for\nhigh needs incarcerated individuals in state and local correctional\nfacilities during the thirty days prior to release.\n 1-b. Notwithstanding any other provision of law, in the event that a\nperson who is an inpatient in an institution for mental diseases, as\ndefined by federal law and regulations, and who was in receipt of\nmedical assistance pursuant to this title immediately prior to being\nadmitted to such facility, or who was directly admitted to such facility\nafter being an inpatient in another institution for mental diseases and\nwho was in receipt of medical assistance prior to admission to such\ntransferring institution, such person shall remain eligible for medical\nassistance while an inpatient in such facility; provided, however, that\nno medical assistance shall be furnished pursuant to this title for any\ncare, services, or supplies provided during the time that such person is\nan inpatient, except to the extent that federal financial participation\nis available for the costs of such care, services, or supplies. Upon\nrelease from such facility, such person shall continue to be eligible\nfor receipt of medical assistance furnished pursuant to this title until\nsuch time as the person is determined to no longer be eligible for\nreceipt of such assistance. To the extent permitted by federal law, the\ntime during which such person is an inpatient in an institution for\nmental diseases shall not be included in any calculation of when the\nperson must recertify his or her eligibility for medical assistance in\naccordance with this article.\n 2. (a) The following income and resources shall be exempt and shall\nnot be taken into consideration in determining a person's eligibility\nfor medical care, services and supplies available under this title:\n (1) (i) for applications for medical assistance filed on or before\nDecember thirty-first, two thousand five, a homestead which is essential\nand appropriate to the needs of the household;\n (ii) for applications for medical assistance filed on or after January\nfirst, two thousand six, a homestead which is essential and appropriate\nto the needs of the household; provided, however, that in determining\neligibility of an individual for medical assistance for nursing facility\nservices and other long term care services, the individual shall not be\neligible for such assistance if the individual's equity interest in the\nhomestead exceeds seven hundred fifty thousand dollars; provided\nfurther, that the dollar amount specified in this clause shall be\nincreased, beginning with the year two thousand eleven, from year to\nyear, in an amount to be determined by the secretary of the federal\ndepartment of health and human services, based on the percentage\nincrease in the consumer price index for all urban consumers, rounded to\nthe nearest one thousand dollars. If such secretary does not determine\nsuch an amount, the department of health shall increase such dollar\namount based on such increase in the consumer price index. Nothing in\nthis clause shall be construed as preventing an individual from using a\nreverse mortgage or home equity loan to reduce the individual's total\nequity interest in the homestead. The home equity limitation established\nby this clause shall be waived in the case of a demonstrated hardship,\nas determined pursuant to criteria established by such secretary. The\nhome equity limitation shall not apply if one or more of the following\npersons is lawfully residing in the individual's homestead: (A) the\nspouse of the individual; or (B) the individual's child who is under the\nage of twenty-one, or is blind or permanently and totally disabled, as\ndefined in section 1614 of the federal social security act.\n (2) essential personal property;\n (3) a burial fund, to the extent allowed as an exempt resource under\nthe cash assistance program to which the applicant is most closely\nrelated;\n (4) savings in amounts equal to one hundred fifty percent of the\nincome amount permitted under subparagraph seven of this paragraph,\nprovided, however, that the amounts for one and two person households\nshall not be less than the amounts permitted to be retained by\nhouseholds of the same size in order to qualify for benefits under the\nfederal supplemental security income program;\n (5) (i) such income as is disregarded or exempt under the cash\nassistance program to which the applicant is most closely related for\npurposes of this subparagraph, cash assistance program means either the\naid to dependent children program as it existed on the sixteenth day of\nJuly, nineteen hundred ninety-six, or the supplemental security income\nprogram; and\n (ii) such income of a disabled person (as such term is defined in\nsection 1614(a)(3) of the federal social security act (42 U.S.C. section\n1382c(a)(3)) or in accordance with any other rules or regulations\nestablished by the social security administration), that is deposited in\ntrusts as defined in clause (iii) of subparagraph two of paragraph (b)\nof this subdivision in the same calendar month within which said income\nis received;\n (6) health insurance premiums;\n (7) income based on the number of family members in the medical\nassistance household, as defined in regulations by the commissioner\nconsistent with federal regulations under title XIX of the federal\nsocial security act that does not exceed one hundred thirty-eight\npercent of the federal poverty line for the applicable family size,\nwhich shall be calculated in accordance with guidance issued by the\nUnited States secretary for health and human services and with other\napplicable provisions of this section;\n (8) No other income or resources, including federal old-age, survivors\nand disability insurance, state disability insurance or other payroll\ndeductions, whether mandatory or optional, shall be exempt and all other\nincome and resources shall be taken into consideration and required to\nbe applied toward the payment or partial payment of the cost of medical\ncare and services available under this title, to the extent permitted by\nfederal law.\n (9) Subject to subparagraph eight, the department, upon the\napplication of a local social services district, after passage of a\nresolution by the local legislative body authorizing such application,\nmay adjust the income exemption based upon the variations between cost\nof shelter in urban areas and rural areas in accordance with standards\nprescribed by the United States secretary of health, education and\nwelfare.\n (10) (i) A person who is receiving or is eligible to receive federal\nsupplemental security income payments and/or additional state payments\nis entitled to a personal needs allowance as follows:\n (A) for the personal expenses of a resident of a residential health\ncare facility, as defined by section twenty-eight hundred one of the\npublic health law, the amount of fifty-five dollars per month;\n (B) for the personal expenses of a resident of an intermediate care\nfacility operated or licensed by the office for people with\ndevelopmental disabilities or a patient of a hospital operated by the\noffice of mental health, as defined by subdivision ten of section 1.03\nof the mental hygiene law, the amount of thirty-five dollars per month.\n (ii) A person who neither receives nor is eligible to receive federal\nsupplemental security income payments and/or additional state payments\nis entitled to a personal needs allowance as follows:\n (A) for the personal expenses of a resident of a residential health\ncare facility, as defined by section twenty-eight hundred one of the\npublic health law, the amount of fifty dollars per month;\n (B) for the personal expenses of a resident of an intermediate care\nfacility operated or licensed by the office for people with\ndevelopmental disabilities or a patient of a hospital operated by the\noffice of mental health, as defined by subdivision ten of section 1.03\nof the mental hygiene law, the amount of thirty-five dollars per month.\n (iii) Notwithstanding the provisions of clauses (i) and (ii) of this\nsubparagraph, the personal needs allowance for a person who is a veteran\nhaving neither a spouse nor a child, or a surviving spouse of a veteran\nhaving no child, who receives a reduced pension from the federal\nveterans administration, and who is a resident of a nursing facility, as\ndefined in section 1919 of the federal social security act, shall be\nequal to such reduced monthly pension but shall not exceed ninety\ndollars per month.\n (11) subject to the availability of federal financial participation,\nany amount, including earnings thereon, in a qualified NY ABLE account\nas established pursuant to article eighty-four of the mental hygiene\nlaw, any contributions to such NY ABLE account, and any distribution for\nqualified disability expenses from such account; provided however, that\nsuch exemption shall be consistent with section 529A of the Internal\nRevenue Code of 1986, as amended.\n * (b) (1) In establishing standards for determining eligibility for\nand amount of such assistance, the department shall take into account\nonly such income and resources, in accordance with federal requirements,\nas are available to the applicant or recipient and as would not be\nrequired to be disregarded or set aside for future needs, and there\nshall be a reasonable evaluation of any such income or resources. There\nshall not be taken into consideration the financial responsibility of\nany individual for any applicant or recipient of assistance under this\ntitle unless such applicant or recipient is such individual's spouse or\nsuch individual's child who is under twenty-one years of age. In\ndetermining the eligibility of a child who is categorically eligible as\nblind or disabled, as determined under regulations prescribed by the\nsocial security act for medical assistance, the income and resources of\nparents or spouses of parents are not considered available to that child\nif she/he does not regularly share the common household even if the\nchild returns to the common household for periodic visits. In the\napplication of standards of eligibility with respect to income, costs\nincurred for medical care, whether in the form of insurance premiums or\notherwise, shall be taken into account. Any person who is eligible for,\nor reasonably appears to meet the criteria of eligibility for, benefits\nunder title XVIII of the federal social security act shall be required\nto apply for and fully utilize such benefits in accordance with this\nchapter.\n (2) (a) Notwithstanding any inconsistent provision of this chapter or\nany other law to the contrary, upon the request of the social services\ndistrict the commissioner shall, subject to the approval of the director\nof the budget and the procurement of the applicable federal waiver,\nauthorize demonstration projects in up to five social services\ndistricts, or portions thereof, for the purpose of testing the\nfeasibility of utilizing a special medical assistance income eligibility\nstandard for certain persons in general hospitals on alternate care\nstatus who have been determined medically eligible for care in the\ncommunity, in order to ease the financial burden of the legally\nresponsible relatives. For any person sixty-five years of age or older\nresiding in such social services districts, who is in a general hospital\non alternate care status awaiting placement in a nursing home or\nintermediate care facility, as to whom it has been determined by the\nsocial services district that such person can be sustained in the\ncommunity with in-home services at a cost not exceeding seventy-five\npercent of the average cost of care in a nursing home or intermediate\ncare facility, and who meets such other criteria as the commissioner may\nestablish, the social services district may, where it is beneficial to\nthe applicant and legally responsible relatives, make a separate\neligibility determination for such person, by adding the income of such\nperson and support considered available from the legally responsible\nrelative determined in accordance with regulations of the department,\nand comparing this sum to the medical assistance income exemption level\nfor a household of one.\n (b) In addition to the authorization provided for in clause (a), the\ncommissioner shall, upon request of a social services district,\nauthorize one social services district, or a portion thereof, to use the\nspecial medical assistance income eligibility standard established in\nclause (a) for persons: who are sixty-five years of age or older in\ngeneral hospitals or in the community and who are medically eligible for\nplacement in a nursing home or intermediate care facility; and who it\nhas been determined by the social services district can be sustained in\nthe community with in-home services at a cost not to exceed the average\ncost of care in a nursing home or intermediate care facility.\n (c) No provision of this subparagraph shall be construed so as to deny\nany benefit to a person otherwise eligible for medical assistance in\naccordance with this chapter.\n (d) Resource eligibility shall be established in accordance with the\nrequirements of paragraph (a) of this subdivision.\n (e) This subparagraph shall be effective if, and as long as, federal\nfinancial participation is available.\n * NB Expired March 31, 1988\n * NB There are 2 sb 2 ¶(b)'s\n * (b) (1) In establishing standards for determining eligibility for\nand amount of such assistance, the department shall take into account\nonly such income and resources, in accordance with federal requirements,\nas are available to the applicant or recipient and as would not be\nrequired to be disregarded or set aside for future needs, and there\nshall be a reasonable evaluation of any such income or resources. The\ndepartment shall not consider the availability of an option for an\naccelerated payment of death benefits or special surrender value\npursuant to paragraph one of subsection (a) of section one thousand one\nhundred thirteen of the insurance law, or an option to enter into a\nviatical settlement pursuant to the provisions of article seventy-eight\nof the insurance law, as an available resource in determining\neligibility for an amount of such assistance, provided, however, that\nthe payment of such benefits shall be considered in determining\neligibility for and amount of such assistance. There shall not be taken\ninto consideration the financial responsibility of any individual for\nany applicant or recipient of assistance under this title unless such\napplicant or recipient is such individual's spouse or such individual's\nchild who is under twenty-one years of age. In determining the\neligibility of a child who is categorically eligible as blind or\ndisabled, as determined under regulations prescribed by the social\nsecurity act for medical assistance, the income and resources of parents\nor spouses of parents are not considered available to that child if\nshe/he does not regularly share the common household even if the child\nreturns to the common household for periodic visits. In the application\nof standards of eligibility with respect to income, costs incurred for\nmedical care, whether in the form of insurance premiums or otherwise,\nshall be taken into account. Any person who is eligible for, or\nreasonably appears to meet the criteria of eligibility for, benefits\nunder title XVIII of the federal social security act shall be required\nto apply for and fully utilize such benefits in accordance with this\nchapter.\n (2) In evaluating the income and resources available to an applicant\nfor or recipient of medical assistance, for purposes of determining\neligibility for and the amount of such assistance, the department must\nconsider assets held in or paid from trusts created by such applicant or\nrecipient, as determined pursuant to the regulations of the department,\nin accordance with the provisions of this subparagraph.\n (i) In the case of a revocable trust created by an applicant or\nrecipient, as determined pursuant to regulations of the department: the\ntrust corpus must be considered to be an available resource; payments\nmade from the trust to or for the benefit of such applicant or recipient\nmust be considered to be available income; and any other payments from\nthe trust must be considered to be assets disposed of by such applicant\nor recipient for purposes of paragraph (d) of subdivision five of this\nsection.\n (ii) In the case of an irrevocable trust created by an applicant or\nrecipient, as determined pursuant to regulations of the department: any\nportion of the trust corpus, and of the income generated by the trust\ncorpus, from which no payment can under any circumstances be made to\nsuch applicant or recipient must be considered, as of the date of\nestablishment of the trust, or, if later, the date on which payment to\nthe applicant or recipient is foreclosed, to be assets disposed of by\nsuch applicant or recipient for purposes of paragraph (d) of subdivision\nfive of this section; any portion of the trust corpus, and of the income\ngenerated by the trust corpus, from which payment could be made to or\nfor the benefit of such applicant or recipient must be considered to be\nan available resource; payments made from the trust to or for the\nbenefit of such applicant or recipient must be considered to be\navailable income; and any other payments from the trust must be\nconsidered to be assets disposed of by such applicant or recipient for\npurposes of paragraph (d) of subdivision five of this section.\n (iii) Notwithstanding the provisions of clauses (i) and (ii) of this\nsubparagraph, in the case of an applicant or recipient who is disabled,\nas such term is defined in section 1614(a)(3) of the federal social\nsecurity act, the department must not consider as available income or\nresources the corpus or income of the following trusts which comply with\nthe provisions of the regulations authorized by clause (iv) of this\nsubparagraph: (A) a trust containing the assets of such a disabled\nindividual which was established for the benefit of the disabled\nindividual while such individual was under sixty-five years of age by\nthe individual, a parent, grandparent, legal guardian, or court of\ncompetent jurisdiction, if upon the death of such individual the state\nwill receive all amounts remaining in the trust up to the total value of\nall medical assistance paid on behalf of such individual; (B) and a\ntrust containing the assets of such a disabled individual established\nand managed by a non-profit association which maintains separate\naccounts for the benefit of disabled individuals, but, for purposes of\ninvestment and management of trust funds, pools the accounts, provided\nthat accounts in the trust fund are established solely for the benefit\nof individuals who are disabled as such term is defined in section\n1614(a)(3) of the federal social security act by such disabled\nindividual, a parent, grandparent, legal guardian, or court of competent\njurisdiction, and to the extent that amounts remaining in the\nindividual's account are not retained by the trust upon the death of the\nindividual, the state will receive all such remaining amounts up to the\ntotal value of all medical assistance paid on behalf of such individual.\nNotwithstanding any law to the contrary, a not-for-profit corporation\nmay, in furtherance of and as an adjunct to its corporate purposes, act\nas trustee of a trust for persons with disabilities established pursuant\nto this subclause, provided that a trust company, as defined in\nsubdivision seven of section one hundred-c of the banking law, acts as\nco-trustee.\n (iv) The department shall promulgate such regulations as may be\nnecessary to carry out the provisions of this subparagraph. Such\nregulations shall include provisions for: assuring the fulfillment of\nfiduciary obligations of the trustee with respect to the remainder\ninterest of the department or state; monitoring pooled trusts; applying\nthis subdivision to legal instruments and other devices similar to\ntrusts, in accordance with applicable federal rules and regulations; and\nestablishing procedures under which the application of this subdivision\nwill be waived with respect to an applicant or recipient who\ndemonstrates that such application would work an undue hardship on him\nor her, in accordance with standards specified by the secretary of the\nfederal department of health and human services. Such regulations may\nrequire: notification of the department of the creation or funding of\nsuch a trust for the benefit of an applicant for or recipient of medical\nassistance; notification of the department of the death of a beneficiary\nof such a trust who is a current or former recipient of medical\nassistance; in the case of a trust, the corpus of which exceeds one\nhundred thousand dollars, notification of the department of transactions\ntending to substantially deplete the trust corpus; notification of the\ndepartment of any transactions involving transfers from the trust corpus\nfor less than fair market value; the bonding of the trustee when the\nassets of such a trust equal or exceed one million dollars, unless a\ncourt of competent jurisdiction waives such requirement; and the bonding\nof the trustee when the assets of such a trust are less than one million\ndollars, upon order of a court of competent jurisdiction. The\ndepartment, together with the department of financial services, shall\npromulgate regulations governing the establishment, management and\nmonitoring of trusts established pursuant to subclause (B) of clause\n(iii) of this subparagraph in which a not-for-profit corporation and a\ntrust company serve as co-trustees.\n (v) Notwithstanding any acts, omissions or failures to act of a\ntrustee of a trust which the department or a local social services\nofficial has determined complies with the provisions of clause (iii) and\nthe regulations authorized by clause (iv) of this subparagraph, the\ndepartment must not consider the corpus or income of any such trust as\navailable income or resources of the applicant or recipient who is\ndisabled, as such term is defined in section 1614(a)(3) of the federal\nsocial security act. The department's remedy for redress of any acts,\nomissions or failures to act by such a trustee which acts, omissions or\nfailures are considered by the department to be inconsistent with the\nterms of the trust, contrary to applicable laws and regulations of the\ndepartment, or contrary to the fiduciary obligations of the trustee\nshall be the commencement of an action or proceeding under subdivision\none of section sixty-three of the executive law to safeguard or enforce\nthe state's remainder interest in the trust, or such other action or\nproceeding as may be lawful and appropriate as to assure compliance by\nthe trustee or to safeguard and enforce the state's remainder interest\nin the trust.\n (vi) The department shall provide written notice to an applicant for\nor recipient of medical assistance who is or reasonably appears to be\neligible for medical assistance except for having income exceeding\napplicable income levels. The notice shall inform the applicant or\nrecipient, in plain language, that in certain circumstances the medical\nassistance program does not count the income of disabled applicants and\nrecipients if it is placed in a trust described in clause (iii) of this\nsubparagraph. The notice shall be included with the eligibility notice\nprovided to such applicants and recipients and shall reference where\nadditional information may be found on the department's website. This\nclause shall not be construed to change any criterion for eligibility\nfor medical assistance.\n * NB There are 2 sb 2 ¶(b)'s\n (3) (a) Social services officials shall authorize medical assistance\nfor persons who would be eligible for such assistance except that their\nincomes exceed the applicable medical assistance income eligibility\nstandard, which is determined according to paragraph (a) of subdivision\ntwo of this section, to become eligible for medical assistance by paying\nto their social services districts the amount by which their incomes\nexceed such income eligibility levels.\n (b) Social services districts shall safeguard, by deposit in special\naccounts, any amounts paid to them by such recipients of medical\nassistance benefits. The amount of any medical assistance payments made\nto providers of medical assistance on behalf of such recipients, shall\nbe charged against the amount in recipients' accounts. Districts shall,\nin accordance with their approved plans, periodically refund the\namounts, if any, by which the amounts in recipients' accounts exceed the\namounts of any medical assistance payments made on their behalf.\nDistricts shall report to the department amounts in recipients' accounts\nthat are equal to the amount of medical assistance payments made on\nrecipients' behalf.\n (c) Eligibility under this subparagraph shall be authorized only in\naccordance with plans submitted by social services districts and\napproved by the commissioner. Plans must be submitted by social services\ndistricts to the commissioner no later than February first, nineteen\nhundred ninety-six. The commissioner shall only approve plans that\ninclude a detailed description of how the district will administer the\nprogram, enroll recipients, safeguard monies in recipients' accounts,\nreconcile payments made to providers of medical assistance services with\naccount balances and refund the amounts by which recipients' account\nfunds exceed the amounts paid to providers on their behalf.\n (d) By January first, nineteen hundred ninety-five, the department\nshall submit to the governor and the legislature a report evaluating the\ndemonstration programs effect on enrollees' access to medical assistance\ncare and services and any other subjects the commissioner deems\nrelevant.\n (e) Notwithstanding any other provision of law, administrative\nexpenditures incurred by local social services districts in relation to\nthis section shall be reimbursable as provided in subdivision one of\nsection three hundred sixty-eight-a of this article.\n 3. (a) Medical assistance shall be furnished to applicants in cases\nwhere, although such applicant has a responsible relative with\nsufficient income and resources to provide medical assistance as\ndetermined by the regulations of the department, the income and\nresources of the responsible relative are not available to such\napplicant because of the absence of such relative or the refusal or\nfailure of such relative to provide the necessary care and assistance.\nIn such cases, however, the furnishing of such assistance shall create\nan implied contract with such relative, and the cost thereof may be\nrecovered from such relative in accordance with title six of article\nthree and other applicable provisions of law.\n (b) (i) When a legally responsible relative agrees or is ordered by a\ncourt or administrative tribunal of competent jurisdiction to provide\nhealth insurance or other medical care coverage for his or her\ndependents or other persons, and such dependents or other persons are\napplicants for, recipients of or otherwise entitled to receive medical\nassistance pursuant to this title, the department and social services\nofficials shall be subrogated to any rights that the responsible\nrelative may have to obtain reimbursement from a third party for the\ncosts of medical care for such dependents or persons.\n (ii) Upon receipt of an application, or upon a determination of\neligibility, for assistance pursuant to this title, the department and\nsocial services officials shall be deemed to have furnished assistance\nto any such dependent or person entitled to receive medical assistance\npursuant to this title and shall be subrogated to any rights such person\nmay have to third party reimbursement as provided in paragraph (b) of\nsubdivision two of section three hundred sixty-seven-a of this title.\n (iii) For purposes of determining whether a person is legally\nresponsible for a person receiving assistance under this title, the\nfollowing shall be dispositive: a copy of a support order issued\npursuant to section four hundred sixteen or five hundred forty-five of\nthe family court act or section two hundred thirty-six or two hundred\nforty of the domestic relations law; an order described in paragraph (h)\nof subdivision four of this section; an order of a court or\nadministrative tribunal of competent jurisdiction pursuant to the\nprovisions of this subdivision; or any other order of a court or\nadministrative tribunal of competent jurisdiction subject to the\nprovisions of this subdivision. If a notice of subrogation as described\nin paragraph (b) of subdivision two of section three hundred\nsixty-seven-a of this title is accompanied by dispositive documentation\nthat a person is legally responsible for a person receiving assistance\nunder this title, any third party liable for reimbursement for the costs\nof medical care shall accord the department or any social services\nofficial the rights of and benefits available to the responsible\nrelative that pertain to the provision of medical care to any persons\nentitled to medical assistance pursuant to this title for whom the\nrelative is legally responsible.\n (c) The provisions of this subdivision shall not be construed to\ndiminish the authority of a social services official to bring a\nproceeding pursuant to the provisions of this chapter or other\nprovisions of law (1) to compel any responsible relative to contribute\nto the support of any person receiving or liable to become in need of\nmedical assistance, or (2) to recover from a recipient or a responsible\nrelative the cost of medical assistance not correctly paid.\n 4. Special eligibility provisions.\n (a) Transitional medical assistance.\n (1) Notwithstanding any other provision of law, each family which was\neligible for medical assistance pursuant to subparagraph four of\nparagraph (b) of subdivision one of this section in at least one of the\nsix months immediately preceding the month in which such family became\nineligible for such assistance because of income from the employment of\nthe caretaker relative shall, while such family includes a dependent\nchild, remain eligible for medical assistance for twelve calendar months\nimmediately following the month in which such family would otherwise be\ndetermined to be ineligible for medical assistance pursuant to the\nprovisions of this title and the regulations of the department governing\nincome and resource limitations relating to eligibility determinations\nfor families described in subparagraph four of paragraph (b) of\nsubdivision one of this section.\n (2) (i) Upon giving notice of termination of medical assistance\nprovided pursuant to subparagraph four of paragraph (b) of subdivision\none of this section, the department shall notify each such family of its\nrights to extended benefits under subparagraph one of this paragraph and\ndescribe the conditions under which such extension may be terminated.\n (ii) The department shall promulgate regulations implementing the\nrequirements of this subparagraph and subparagraph one of this paragraph\nrelating to the conditions under which extended coverage hereunder may\nbe terminated, the scope of coverage, and the conditions under which\ncoverage may be extended pending a redetermination of eligibility. Such\nregulations shall, at a minimum, provide for: termination of such\ncoverage at the close of the first month in which the family ceases to\ninclude a dependent child; notice of termination prior to the effective\ndate of any terminations; coverage under employee health plans and\nhealth maintenance organizations; and disqualification of persons for\nextended coverage benefits under this paragraph for fraud.\n (3) Notwithstanding any inconsistent provision of law, each family\nwhich was eligible for medical assistance pursuant to subparagraph four\nof paragraph (b) of subdivision one of this section in at least three of\nthe six months immediately preceding the month in which such family\nbecame ineligible for such assistance as a result, wholly or partly, of\nthe collection or increased collection of spousal support pursuant to\npart D of title IV of the federal social security act, shall, for\npurposes of medical assistance eligibility, be considered to be eligible\nfor medical assistance pursuant to subparagraph four of paragraph (b) of\nsubdivision one of this section for an additional four calendar months\nbeginning with the month ineligibility for such assistance begins.\n (b) Pregnant women and children.\n (1) A pregnant woman eligible for medical assistance under\nsubparagraph two or four of paragraph (b) of subdivision one of this\nsection on any day of her pregnancy will continue to be eligible for\nsuch care and services for a period of one year beginning on the last\nday of pregnancy, without regard to any change in the income of the\nfamily that includes the pregnant woman, even if such change otherwise\nwould have rendered her ineligible for medical assistance.\n (2) A child born to a woman eligible for and receiving medical\nassistance on the date of the child's birth shall be deemed to have\napplied for medical assistance and to have been found eligible for such\nassistance on the date of such birth and to remain eligible for such\nassistance for a period of one year, so long as the child is a member of\nthe woman's household and the woman remains eligible for such assistance\nor would remain eligible for such assistance if she were pregnant.\n (3) (A) A child between the ages of six and nineteen who is determined\neligible for medical assistance under the provisions of this section,\nshall, consistent with applicable federal requirements, remain eligible\nfor such assistance until the last day of the month which is twelve\nmonths following the determination or renewal of eligibility for such\nassistance.\n (B) A child under the age of six who is determined eligible for\nmedical assistance under the provisions of this section, shall,\nconsistent with applicable federal requirements, remain continuously\neligible for medical assistance coverage until the later of:\n (i) the last day of the twelfth month following the determination or\nrenewal of eligibility for such assistance; or\n (ii) the last day of the month in which the child reaches the age of\nsix.\n (4) An infant eligible under subparagraph two or four of paragraph (b)\nof subdivision one of this section who is receiving medically necessary\nin-patient services for which medical assistance is provided on the date\nthe child attains one year of age, and who, but for attaining such age,\nwould remain eligible for medical assistance under such subparagraph,\nshall continue to remain eligible until the end of the stay for which\nin-patient services are being furnished.\n (5) A child eligible under subparagraph three of paragraph (b) of\nsubdivision one of this section who is receiving medically necessary\nin-patient services for which medical assistance is provided on the date\nthe child attains nineteen years of age, and who, but for attaining such\nage, would remain eligible for medical assistance under this paragraph,\nshall continue to remain eligible until the end of the stay for which\nin-patient services are being furnished.\n (6) A woman who was pregnant while in receipt of medical assistance\nwho subsequently loses her eligibility for medical assistance shall have\nher eligibility for medical assistance continued for a period of\ntwenty-four months from the end of the month in which the sixtieth day\nfollowing the end of her pregnancy occurs, but only for Federal Title X\nservices which are eligible for reimbursement by the federal government\nat a rate of ninety percent; provided, however, that such ninety percent\nlimitation shall not apply to those services identified by the\ncommissioner as services, including treatment for sexually transmitted\ndiseases, generally performed as part of or as a follow-up to a service\neligible for such ninety percent reimbursement; and provided further,\nhowever, that nothing in this paragraph shall be deemed to affect\npayment for such Title X services if federal financial participation is\nnot available for such care, services and supplies.\n (c) Continuous coverage for adults. Notwithstanding any other\nprovision of law, a person whose eligibility for medical assistance is\nbased on the modified adjusted gross income of the person or the\nperson's household, and who loses eligibility for such assistance for a\nreason other than citizenship status, lack of state residence, or\nfailure to provide a valid social security number, before the end of a\ntwelve month period beginning on the effective date of the person's\ninitial eligibility for such assistance, or before the end of a twelve\nmonth period beginning on the date of any subsequent determination of\neligibility based on modified adjusted gross income, shall have his or\nher eligibility for such assistance continued until the end of such\ntwelve month period, provided that federal financial participation in\nthe costs of such assistance is available.\n (d) Breast and cervical cancer treatment.\n (1) Persons who are not eligible for medical assistance under the\nterms of section 1902(a)(10)(A)(i) of the federal social security act\nare eligible for medical assistance coverage during the treatment of\nbreast or cervical cancer, subject to the provisions of this paragraph.\n (2) (i) Medical assistance is available under this paragraph to\npersons who are under sixty-five years of age, have been screened for\nbreast and/or cervical cancer under the Centers for Disease Control and\nPrevention breast and cervical cancer early detection program and need\ntreatment for breast or cervical cancer, and are not otherwise covered\nunder creditable coverage as defined in the federal public health\nservice act; provided however that medical assistance shall be furnished\npursuant to this clause only to the extent permitted under federal law,\nif, for so long as, and to the extent that federal financial\nparticipation is available therefor.\n (ii) Medical assistance is available under this paragraph to persons\nwho meet the requirements of clause (i) of this subparagraph but for\ntheir age and/or gender, who have been screened for breast and/or\ncervical cancer under the program described in title one-A of article\ntwenty-four of the public health law and need treatment for breast or\ncervical cancer, and are not otherwise covered under creditable coverage\nas defined in the federal public health service act; provided however\nthat medical assistance shall be furnished pursuant to this clause only\nif and for so long as the provisions of clause (i) of this subparagraph\nare in effect.\n (3) Medical assistance provided to a person under this paragraph shall\nbe limited to the period in which such person requires treatment for\nbreast or cervical cancer.\n (4) (i) The commissioner of health shall promulgate such regulations\nas may be necessary to carry out the provisions of this paragraph. Such\nregulations shall include, but not be limited to: eligibility\nrequirements; a description of the medical services which are covered;\nand a process for providing presumptive eligibility when a qualified\nentity, as defined by the commissioner, determines on the basis of\npreliminary information that a person meets the requirements for\neligibility under this paragraph.\n (ii) For purposes of determining eligibility for medical assistance\nunder this paragraph, resources available to such individual shall not\nbe considered nor required to be applied toward the payment or part\npayment of the cost of medical care, services and supplies available\nunder this paragraph.\n (iii) An individual shall be eligible for presumptive eligibility for\nmedical assistance under this paragraph in accordance with subdivision\nfive of section three hundred sixty-four-i of this title.\n (5) The commissioner of health shall, consistent with this title, make\nany necessary amendments to the state plan for medical assistance\nsubmitted pursuant to section three hundred sixty-three-a of this title,\nin order to ensure federal financial participation in expenditures under\nthis paragraph. Notwithstanding any provision of law to the contrary,\nthe provisions of clause (i) of subparagraph two of this paragraph shall\nbe effective only if and for so long as federal financial participation\nis available in the costs of medical assistance furnished thereunder.\n (e) Colon and prostate cancer treatment.\n (1) Notwithstanding any other provision of law to the contrary, a\nperson who has been screened or referred for screening for colon or\nprostate cancer by the cancer services screening program, as\nadministered by the department of health, and has been diagnosed with\ncolon or prostate cancer is eligible for medical assistance for the\nduration of his or her treatment for such cancer.\n (2) Persons eligible for medical assistance under this paragraph shall\nhave an income of two hundred fifty percent or less of the comparable\nfederal income official poverty line as defined and annually revised by\nthe federal office of management and budget.\n (3) An individual shall be eligible for presumptive eligibility for\nmedical assistance under this paragraph in accordance with subdivision\nfive of section three hundred sixty-four-i of this title.\n (4) Medical assistance is available under this paragraph to persons\nwho are under sixty-five years of age, and are not otherwise covered\nunder creditable coverage as defined in the federal Public Health\nService Act.\n 5. (a) In determining the initial or continuing eligibility of any\nperson for assistance under this title, there shall be included in the\namount of resources considered available to such person the\nuncompensated value of any resource transferred prior to the date of\napplication for medical assistance as specified in paragraphs (b), (c),\n(d) and (e) of this subdivision, and such person shall be ineligible for\nsuch assistance for such period or periods as specified in this\nsubdivision.\n (b) For transfers made on or after April tenth, nineteen hundred\neighty-two and prior to October first, nineteen hundred eighty-nine:\n (1) a nonexempt resource shall mean any resource which if retained by\nsuch person would not be exempt from consideration under the provisions\nof subdivision two of this section;\n (2) any transfer of a nonexempt resource made within twenty-four\nmonths prior to the date of a person's application for medical\nassistance shall be presumed to have been made for the purpose of\nqualifying for such assistance; however, if such person furnishes\nevidence to establish that the transfer was exclusively for some other\npurpose, the uncompensated value shall not be considered available to\nsuch person in determining his or her initial or continued eligibility\nfor medical assistance;\n (3) the uncompensated value of any such resource shall be the fair\nmarket value of such resource at the time of transfer, minus the amount\nof the compensation received by the person in exchange for the resource;\n (4) any person determined to have excess resources of twelve thousand\ndollars or less because of the application of this paragraph shall\nremain ineligible for assistance under this title for a period of\ntwenty-four months from the date of the transfer, or until such person\ncan demonstrate that he or she has incurred medical expenses after the\ndate of transfer in the amount of such excess above otherwise allowable\nresources, whichever period is shorter;\n (5) any person determined to have excess resources of more than twelve\nthousand dollars because of the application of this paragraph shall\nremain ineligible for assistance under this title for a period which\nexceeds twenty-four months, which period shall be determined by adding\nan additional month of ineligibility for each two thousand dollars in\nexcess of twelve thousand dollars, or until such person can demonstrate\nthat he or she has incurred medical expenses after the date of transfer\nin the amount of such excess above otherwise allowable resources,\nwhichever period is shorter.\n (c) For transfers made on or after October first, nineteen hundred\neighty-nine:\n (1) (i) "institutionalized person" means any person who is an\nin-patient in a nursing facility, or who is an in-patient in a medical\nfacility and is receiving a level of care provided in a nursing\nfacility, or who is receiving care, services or supplies pursuant to a\nwaiver pursuant to subsection (c) of section nineteen hundred fifteen of\nthe federal social security act.\n (ii) "resources" includes any resources which would not be considered\nexempt from consideration under the provisions of subdivision two of\nthis section, without regard to the exemption provided for in\nsubparagraph one of paragraph (a) of such subdivision.\n (iii) "nursing facility" means a nursing home as defined by section\ntwenty-eight hundred one of the public health law.\n (iv) "nursing facility services" means nursing care and health related\nservices provided in a nursing facility, a level of care provided in a\nhospital which is equivalent to the care which is provided in a nursing\nfacility and care, services or supplies provided pursuant to a waiver\npursuant to subsection (c) of section nineteen hundred fifteen of the\nfederal social security act.\n (2) the uncompensated value of a resource shall be the fair market\nvalue of such resource at the time of transfer, minus the amount of the\ncompensation received in exchange for the resource.\n (3) any transfer of a resource by a person or such person's spouse for\nless than fair market value made within or after the thirty months\nimmediately preceding the date the person becomes an institutionalized\nperson or the date of application for medical assistance while an\ninstitutionalized person, if later, shall render the person ineligible\nfor nursing facility services for a period specified in subparagraph\nfour of this paragraph; however, an institutionalized person shall not\nbe ineligible for nursing facility services solely by reason of any such\ntransfer to the extent that:\n (i) the resource transferred was a home and title to the home was\ntransferred to: (A) the spouse of such person; or (B) a child of such\nperson who is under the age of twenty-one years or certified blind or\ncertified permanently and totally disabled, as defined by section two\nhundred eight of this title; or (C) a sibling of such person who has an\nequity interest in such home and who resided in such home for a period\nof at least one year immediately before the date the person became an\ninstitutionalized person; or (D) a son or daughter of such person who\nwas residing in such home for a period of at least two years immediately\nbefore the date such person became an institutionalized person, and who\nprovided care to such person which permitted such person to reside at\nhome rather than in an institution or facility; or\n (ii) the resource was transferred to or for the sole benefit of such\nperson's spouse, or from such person's spouse to or for the sole benefit\nof such person, or to his or her child who is certified blind or\ncertified permanently and totally disabled; or\n (iii) a satisfactory showing is made that: (A) the person or such\nperson's spouse intended to dispose of the resource either at fair\nmarket value, or for other valuable consideration, or (B) the resource\nwas transferred exclusively for a purpose other than to qualify for\nmedical assistance; or\n (iv) denial of eligibility would work an undue hardship, as defined by\nthe commissioner which definition shall include the inability of the\ninstitutionalized person or such person's spouse to retrieve the\nresource or to obtain fair market value therefor despite his or her best\nefforts.\n (4) Any transfer made by a person or the person's spouse under\nsubparagraph three of this paragraph shall cause the person to be\nineligible for nursing facility services, for services at a level of\ncare equivalent to that of nursing facility services for the lesser of\n(i) a period of thirty months from the date of transfer, or (ii) a\nperiod equal to the total uncompensated value of the resources so\ntransferred, divided by the average cost of nursing facility services to\na private patient for a given period of time at the time of application\nas determined by the commissioner. For purposes of this subparagraph the\naverage cost of nursing facility services to a private patient for a\ngiven period of time at the time of application shall be presumed to be\none hundred twenty percent of the average medical assistance rate of\npayment as of the first day of January of each year for nursing\nfacilities within the region as established pursuant to paragraph (b) of\nsubdivision sixteen of section twenty-eight hundred seven-c of the\npublic health law wherein the applicant resides.\n (d) For transfers made after August tenth, nineteen hundred\nninety-three:\n (1) (i) "assets" means all income and resources of an individual and\nof the individual's spouse, including income or resources to which the\nindividual or the individual's spouse is entitled but which are not\nreceived because of action by: the individual or the individual's\nspouse; a person with legal authority to act in place of or on behalf of\nthe individual or the individual's spouse; a person acting at the\ndirection or upon the request of the individual or the individual's\nspouse; or by a court or administrative body with legal authority to act\nin place of or on behalf of the individual or the individual's spouse or\nat the direction or upon the request of the individual or the\nindividual's spouse.\n (ii) "blind" has the same meaning given to such term in section\n1614(a)(2) of the federal social social security act.\n (iii) "disabled" has the same meaning given to such term in section\n1614(a)(3) of the federal social security act.\n (iv) "income" has the same meaning given to such term in section 1612\nof the federal social security act.\n (v) "resources" has the same meaning given to such term in section\n1613 of the federal social security act, without regard, in the case of\nan institutionalized individual, to the exclusion provided for in\nsubsection (a)(1) of such section.\n (vi) "look-back period" means the thirty-six month period, or, in the\ncase of payments from a trust or portions of a trust which are treated\nas assets disposed of by the individual pursuant to department\nregulations, the sixty-month period, immediately preceding the date that\nan institutionalized individual is both institutionalized and has\napplied for medical assistance.\n (vii) "institutionalized individual" means any individual who is an\nin-patient in a nursing facility, including an intermediate care\nfacility for individuals with developmental disabilities, or who is an\nin-patient in a medical facility and is receiving a level of care\nprovided in a nursing facility, or who is receiving care, services or\nsupplies pursuant to a waiver granted pursuant to subsection (c) of\nsection 1915 of the federal social security act.\n (viii) "intermediate care facility for individuals with developmental\ndisabilities" means a facility certified under article sixteen of the\nmental hygiene law and which has a valid agreement with the department\nfor providing intermediate care facility services and receiving payment\ntherefor under title XIX of the federal social security act.\n (ix) "nursing facility" means a nursing home as defined by section\ntwenty-eight hundred one of the public health law and an intermediate\ncare facility for individuals with developmental disabilities.\n (x) "nursing facility services" means nursing care and health related\nservices provided in a nursing facility; a level of care provided in a\nhospital which is equivalent to the care which is provided in a nursing\nfacility; and care, services or supplies provided pursuant to a waiver\ngranted pursuant to subsection (c) of section 1915 of the federal social\nsecurity act.\n (2) The uncompensated value of an asset is the fair market value of\nsuch asset at the time of transfer, minus the amount of the compensation\nreceived in exchange for the asset.\n (3) In determining the medical assistance eligibility of an\ninstitutionalized individual, any transfer of an asset by the individual\nor the individual's spouse for less than fair market value made within\nor after the look-back period shall render the individual ineligible for\nnursing facility services for the period of time specified in\nsubparagraph four of this paragraph. Notwithstanding the provisions of\nthis subparagraph, an individual shall not be ineligible for services\nsolely by reason of any such transfer to the extent that:\n (i) in the case of an institutionalized individual, the asset\ntransferred was a home and title to the home as transferred to: (A) the\nspouse of the individual; or (B) a child of the individual who is under\nthe age of twenty-one years or blind or disabled; or (C) a sibling of\nthe individual who has an equity interest in such home and who resided\nin such home for a period of at least one year immediately before the\ndate the individual became an institutionalized individual; or (D) a\nchild of the individual who was residing in such home for a period of at\nleast two years immediately before the date the individual became an\ninstitutionalized individual, and who provided care to the individual\nwhich permitted the individual to reside at home rather than in an\ninstitution or facility; or\n (ii) the assets: (A) were transferred to the individual's spouse, or\nto another for the sole benefit of the individual's spouse; or (B) were\ntransferred from the individual's spouse to another for the sole benefit\nof the individual's spouse; or (C) were transferred to the individual's\nchild who is blind or disabled, or to a trust established solely for the\nbenefit of such child; or (D) were transferred to a trust established\nsolely for the benefit of an individual under sixty-five years of age\nwho is disabled; or\n (iii) a satisfactory showing is made that: (A) the individual or the\nindividual's spouse intended to dispose of the assets either at fair\nmarket value, or for other valuable consideration; or (B) the assets\nwere transferred exclusively for a purpose other than to qualify for\nmedical assistance; or (C) all assets transferred for less than fair\nmarket value have been returned to the individual; or\n (iv) denial of eligibility would cause an undue hardship, as\ndetermined pursuant to the regulations of the department in accordance\nwith criteria established by the secretary of the federal department of\nhealth and human services.\n (4) Any transfer made by an individual or the individual's spouse\nunder subparagraph three of this paragraph shall cause the person to be\nineligible for services for a period equal to the total, cumulative\nuncompensated value of all assets transferred during or after the\nlook-back period, divided by the average monthly costs of nursing\nfacility services provided to a private patient for a given period of\ntime at the time of application, as determined pursuant to the\nregulations of the department. The period of ineligibility shall begin\nwith the first day of the first month during or after which assets have\nbeen transferred for less than fair market value, and which does not\noccur in any other periods of ineligibility under this paragraph. For\npurposes of this subparagraph, the average monthly costs of nursing\nfacility services to a private patient for a given period of time at the\ntime of application shall be presumed to be one hundred twenty percent\nof the average medical assistance rate of payment as of the first day of\nJanuary of each year for nursing facilities within the region wherein\nthe applicant resides, as established pursuant to paragraph (b) of\nsubdivision sixteen of section twenty-eight hundred seven-c of the\npublic health law.\n (5) In the case of an asset held by an individual in common with\nanother person or persons in a joint tenancy, tenancy in common, or\nsimilar arrangement, the asset, or the affected portion of the asset,\nshall be considered to be transferred by such individual when any action\nis taken, either by such individual or by any other person, that reduces\nor eliminates such individual's ownership or control of such asset.\n (6) In the case of a trust established by the individual, as\ndetermined pursuant to the regulations of the department, any payment,\nother than a payment to or for the benefit of the individual, from a\nrevocable trust is considered to be a transfer of assets by the\nindividual and any payment, other than to or for the benefit of the\nindividual, from the portion of an irrevocable trust which, under any\ncircumstance, could be made available to the individual is considered to\nbe a transfer of assets by the individual and, further, the value of any\nportion of an irrevocable trust from which no payment could be made to\nthe individual under any circumstances is considered to be a transfer of\nassets by the individual for purposes of this section as of the date of\nestablishment of the trust, or, if later, the date on which payment to\nthe individual is foreclosed.\n (e) For transfers made on or after February eighth, two thousand six:\n (1)(i) "assets" means all income and resources of an individual and of\nthe individual's spouse, including income and resources to which the\nindividual or the individual's spouse is entitled but which are not\nreceived because of action by: the individual or the individual's\nspouse; a person with legal authority to act in place of or on behalf of\nthe individual or the individual's spouse; a person acting at the\ndirection or upon the request of the individual or the individual's\nspouse; or by a court or administrative body with legal authority to act\nin place of or on behalf of the individual or the individual's spouse or\nat the direction or upon the request of the individual or the\nindividual's spouse;\n (ii) "blind" has the same meaning given to such term in section\n1614(a)(2) of the federal social security act.\n (iii) "disabled" has the same meaning given to such term in section\n1614(a)(3) of the federal social security act.\n (iv) "income" has the same meaning given to such term in section 1612\nof the federal social security act.\n (v) "resources" has the same meaning given to such term in section\n1613 of the federal social security act, without regard to the exclusion\nprovided for in subsection (a)(1) of such section.\n (vi) "look-back period" means the sixty-month period immediately\npreceding the date that an institutionalized individual is both\ninstitutionalized and has applied for medical assistance, or in the case\nof a non-institutionalized individual, subject to federal approval, the\nthirty-month period immediately preceding the date that such\nnon-institutionalized individual applies for medical assistance coverage\nof long term care services. Nothing herein precludes a review of\neligibility for retroactive authorization for medical expenses incurred\nduring the three months prior to the month of application for medical\nassistance.\n (vii) "institutionalized individual" means any individual who is an\nin-patient in a nursing facility, including an intermediate care\nfacility for individuals with developmental disabilities, or who is an\nin-patient in a medical facility and is receiving a level of care\nprovided in a nursing facility, or who is described in section\n1902(a)(10)(A)(ii)(VI) of the federal social security act.\n (viii) "intermediate care facility for individuals with developmental\ndisabilities" means a facility certified under article sixteen of the\nmental hygiene law and which has a valid agreement with the department\nfor providing intermediate care facility services and receiving payment\ntherefor under title XIX of the federal social security act.\n (ix) "nursing facility" means a nursing home as defined by section\ntwenty-eight hundred one of the public health law and an intermediate\ncare facility for individuals with developmental disabilities.\n (x) "nursing facility services" means nursing care and health related\nservices provided in a nursing facility; a level of care provided in a\nhospital which is equivalent to the care which is provided in a nursing\nfacility; and care, services or supplies provided pursuant to a waiver\ngranted pursuant to subsection (c) of section 1915 of the federal social\nsecurity act or successor federal waiver.\n (xi) "non-institutionalized individual" means an individual who is not\nan institutionalized individual, as defined in clause (vii) of this\nsubparagraph.\n (xii) "long term care services" means home health care services,\nprivate duty nursing services, personal care services, assisted living\nprogram services and such other services for which medical assistance is\notherwise available under this chapter which are designated as long term\ncare services in the regulations of the department.\n (2) The uncompensated value of an asset is the fair market value of\nsuch asset at the time of transfer less any outstanding loans,\nmortgages, or other encumbrances on the asset, minus the amount of the\ncompensation received in exchange for the asset.\n (3) In determining the medical assistance eligibility of an\ninstitutionalized individual, any transfer of an asset by the individual\nor the individual's spouse for less than fair market value made within\nor after the look-back period shall render the individual ineligible for\nnursing facility services for the period of time specified in\nsubparagraph five of this paragraph. In determining the medical\nassistance eligibility of a non-institutionalized individual, any\ntransfer of an asset by the individual or the individual's spouse for\nless than fair market value made within or after the look-back period\nshall render the individual ineligible for community based long term\ncare services for the period of time specified in subparagraph five of\nthis paragraph. For purposes of this paragraph:\n (i) the purchase of an annuity shall be treated as the disposal of an\nasset for less than fair market value unless: the state is named as the\nbeneficiary in the first position for at least the total amount of\nmedical assistance paid on behalf of the annuitant, or the state is\nnamed in the second position after a community spouse or minor or\ndisabled child and is named in the first position if such spouse or a\nrepresentative of such child disposes of any such remainder for less\nthan fair market value; and the annuity meets the requirements of\nsection 1917(c)(1)(G) of the federal social security act;\n (ii) the purchase of a life estate interest in another person's home\nshall be treated as the disposal of an asset for less than fair market\nvalue unless the purchaser resided in such home for a period of at least\none year after the date of purchase;\n (iii) the purchase of a promissory note, loan, or mortgage shall be\ntreated as the disposal of an asset for less than fair market value\nunless such note, loan, or mortgage meets the requirements of section\n1917(c)(1)(I) of the federal social security act.\n (4) Notwithstanding the provisions of this paragraph, an individual\nshall not be ineligible for services solely by reason of any such\ntransfer to the extent that:\n (i) in the case of an institutionalized individual the asset\ntransferred was a home and title to the home was transferred to: (A) the\nspouse of the individual; or (B) a child of the individual who is under\nthe age of twenty-one years or blind or disabled; or (C) a sibling of\nthe individual who has an equity interest in such home and who resided\nin such home for a period of at least one year immediately before the\ndate the individual became an institutionalized individual; or (D) a\nchild of the individual who was residing in such home for a period of at\nleast two years immediately before the date the individual became an\ninstitutionalized individual, and who provided care to the individual\nwhich permitted the individual to reside at home rather than in an\ninstitution or facility; or\n (ii) the assets: (A) were transferred to the individual's spouse, or\nto another for the sole benefit of the individual's spouse; or (B) were\ntransferred from the individual's spouse to another for the sole benefit\nof the individual's spouse; or (C) were transferred to the individual's\nchild who is blind or disabled, or to a trust established solely for the\nbenefit of such child; or (D) were transferred to a trust established\nsolely for the benefit of an individual under sixty-five years of age\nwho is disabled; or\n (iii) a satisfactory showing is made that: (A) the individual or the\nindividual's spouse intended to dispose of the assets either at fair\nmarket value, or for other valuable consideration; or (B) the assets\nwere transferred exclusively for a purpose other than to qualify for\nmedical assistance; or (C) all assets transferred for less than fair\nmarket value have been returned to the individual; or\n (iv) denial of eligibility would cause an undue hardship, such that\napplication of the transfer of assets provision would deprive the\nindividual of medical care such that the individual's health or life\nwould be endangered, or would deprive the individual of food, clothing,\nshelter, or other necessities of life. The commissioner of health shall\ndevelop a hardship waiver process which shall include a timely process\nfor determining whether an undue hardship waiver will be granted and a\ntimely process under which an adverse determination can be appealed. The\ncommissioner of health shall provide notice of the hardship waiver\nprocess in writing to those individuals who are required to comply with\nthe transfer of assets provision under this section. If such an\nindividual is an institutionalized individual, the facility in which he\nor she is residing shall be permitted to file an undue hardship waiver\napplication on behalf of such individual with the consent of the\nindividual or the personal representative of the individual.\n (5) Any transfer made by an individual or the individual's spouse\nunder subparagraph three of this paragraph shall cause the person to be\nineligible for services for a period equal to the total, cumulative\nuncompensated value of all assets transferred during or after the\nlook-back period, divided by the average monthly costs of nursing\nfacility services provided to a private patient for a given period of\ntime at the time of application, as determined pursuant to the\nregulations of the department. For purposes of this subparagraph, the\naverage monthly costs of nursing facility services to a private patient\nfor a given period of time at the time of application shall be presumed\nto be one hundred twenty percent of the average medical assistance rate\nof payment as of the first day of January of each year for nursing\nfacilities within the region where the applicant resides, as established\npursuant to paragraph (b) of subdivision sixteen of section twenty-eight\nhundred seven-c of the public health law. The period of ineligibility\nshall begin the first day of a month during or after which assets have\nbeen transferred for less than fair market value, or the first day the\notherwise eligible individual is receiving services for which medical\nassistance coverage would be available based on an approved application\nfor such care but for the provisions of subparagraph three of this\nparagraph, whichever is later, and which does not occur in any other\nperiods of ineligibility under this paragraph.\n (6) In the case of an asset held by an individual in common with\nanother person or persons in a joint tenancy, tenancy in common, or\nsimilar arrangement, the asset, or the affected portion of the asset,\nshall be considered transferred by such individual when any action is\ntaken, either by such individual or by any other person, that reduces or\neliminates such individual's ownership or control of such asset.\n (7) In the case of a trust established by the individual, as\ndetermined pursuant to the regulations of the department, any payment,\nother than a payment to or for the benefit of the individual, from a\nrevocable trust is considered to be a transfer of assets by the\nindividual and any payment, other than to or for the benefit of the\nindividual, from the portion of an irrevocable trust which, under any\ncircumstance, could be made available to the individual is considered to\nbe a transfer of assets by the individual and, further, the value of any\nportion of an irrevocable trust from which no payment could be made to\nthe individual under any circumstances is considered to be a transfer of\nassets by the individual for purposes of this section as of the date of\nestablishment of the trust, or, if later, the date on which the payment\nto the individual is foreclosed.\n (f) The commissioner shall promulgate such rules and regulations as\nmay be necessary to carry out the provisions of this subdivision.\n * 6. a. The commissioner of health shall apply for a home and\ncommunity-based services waiver pursuant to subdivision (c) of section\nnineteen hundred fifteen of the federal social security act in order to\nprovide home and community-based services, not included under the\nmedical assistance program.\n b. A person eligible for participation in the waiver program shall:\n (i) be twenty-one years of age or under;\n (ii) be physically disabled, according to the federal supplemental\nsecurity income program criteria, including but not limited to a person\nwho is multiply disabled;\n (iii) require the level of care provided by a nursing facility or by a\nhospital;\n (iv) be capable of being cared for in the community if provided with\ncase management services and/or other services specified in paragraph f\nof this subdivision, in addition to other services provided under this\ntitle, as determined by the assessment required by paragraph d of this\nsubdivision;\n (v) meet the requirements of paragraph i of this subdivision; and\n (vi) meet such other criteria as may be established by the\ncommissioner as may be necessary to administer the provisions of this\nsubdivision in an equitable manner.\n c. Social services districts shall assess the eligibility of persons\nin accordance with the provisions of paragraphs b and d of this\nsubdivision and shall refer persons who appear to meet the criteria set\nforth in such paragraphs to the commissioner of health for consideration\nfor participation in the waiver program and final determinations of\ntheir eligibility for participation in the waiver program.\n d. The commissioner of health shall designate persons to assess the\neligibility of persons in accordance with paragraphs b and c of this\nsubdivision under consideration for participation in the waiver program.\nPersons designated by such commissioner may include the person's\nphysician, a representative of the social services district, a\nrepresentative of the provider of a long term home health care program\nor certified home health agency and, where appropriate, the discharge\ncoordinator of the hospital or nursing facility and such other persons\nas such commissioner deems appropriate. The assessment shall include,\nbut need not be limited to, an evaluation of the medical, social,\nhabilitation, and environmental needs of the person and shall serve as\nthe basis for the development and provision of an appropriate plan of\ncare for the person.\n e. Prior to a person's participation in the waiver program, the social\nservices district or the commissioner of health, as appropriate, shall\nundertake or arrange for the development of a written plan of care for\nthe provision of services consistent with the level of care determined\nby the assessment, in accordance with criteria established by the\ncommissioner of health.\n f. Home and community-based services which may be provided to persons\nspecified in paragraph b of this subdivision include: (i) case\nmanagement services; (ii) respite services; (iii) home adaptation; (iv)\nhospice and palliative care services; and (v) such other home and\ncommunity-based services, other than room and board, as may be approved\nby the secretary of the federal department of health and human services.\n g. Social services districts shall designate who may provide the home\nand community-based services identified in paragraph f of this\nsubdivision, subject to the approval of the commissioner of health.\n h. Notwithstanding any other provision of this chapter or any other\nlaw to the contrary, for purposes of determining medical assistance\neligibility for persons specified in paragraph b of this subdivision,\nthe income and resources of responsible relatives shall not be deemed\navailable for as long as the person meets the criteria specified in this\nsubdivision.\n i. Before a person may participate in the waiver program specified in\nparagraph a of this subdivision, the department of health shall\ndetermine that the annual medical assistance expenditures for home and\ncommunity-based services for all persons participating in the waiver\nprogram would not exceed the annual medical assistance expenditures for\nnursing facility and hospital services for all such persons had the\nwaiver not been granted.\n j. The commissioner shall review the plans of care and expenditure\nestimates determined by social services districts prior to the\nparticipation of any person in the waiver program.\n k. This subdivision shall be effective only if, and as long as,\nfederal financial participation is available for expenditures incurred\nunder this subdivision.\n * NB Repealed March 31, 2028\n 6-a. a. The commissioner of health shall apply for a nursing facility\ntransition and diversion medicaid waiver pursuant to subdivision (c) of\nsection nineteen hundred fifteen of the federal social security act in\norder to provide home and community based services to individuals who\nwould otherwise be cared for in a nursing facility and who would be\nconsidered to be part of an aggregate group of individuals who, taken\ntogether, will be cared for at less cost in the community than they\nwould have otherwise and to provide reimbursement for several home and\ncommunity based services not presently included in the medical\nassistance program. The initial application shall provide for no less\nthan five thousand persons to be eligible to participate in the waiver\nspread over the first three years and continue to increase thereafter.\n b. A person eligible for participation in the nursing facility\ntransition and diversion medicaid waiver program shall:\n (i) be at least eighteen years of age;\n (ii) be eligible for and in receipt of medicaid authorization for long\nterm care services, including nursing facility services;\n (iii) have resided in a nursing facility and/or have been assessed and\ndetermined to require the level of care provided by a nursing facility;\n (iv) be capable of residing in the community if provided with services\nspecified in paragraph f of this subdivision, in addition to other\nservices provided under this title, as determined by the assessment\nrequired by paragraph d of this subdivision; and\n (v) meet such other criteria as may be established by the commissioner\nof health as may be necessary to administer the provision of this\nsubdivision in an equitable manner.\n c. The department of health shall develop such waiver application in\nconjunction with independent living centers, representatives from\ndisability and senior groups and such other interested parties as the\ndepartment shall determine to be appropriate.\n d. The commissioner of health shall contract with not-for-profit\nagencies around the state that have experience with providing community\nbased services to individuals with disabilities, hereinafter referred to\nas regional resource development specialists, who shall be responsible\nfor initial contact with the prospective waiver participant, for\nassuring the waiver candidates have choice in selecting a service\ncoordinator and other providers, and for assessing applicants including\ndecisions for eligibility for participation in the waiver, which contain\nthe original service plan and all subsequent revised service plans.\nRegional resource development specialists shall be responsible for\napproving service plans and the department of health shall provide\ntechnical assistance and oversight.\n e. Prior to the person's participation in the waiver program, a\nservice coordinator approved by the department of health shall undertake\nthe development of a written plan of care for the provision of services\nconsistent with the level of care determined by an initial assessment,\nin accordance with criteria established by the commissioner of health.\nSuch plans shall set forth the type of services to be furnished, the\namount, the frequency and duration of each service and the type of\nproviders to furnish each service.\n f. Nursing facility transition and diversion services which may be\nprovided to persons specified in paragraph b of this subdivision shall\nbe established and defined as part of the waiver application development\nprocess specified in paragraph c of this subdivision and may include:\n(i) case management services; (ii) personal care; (iii) independent\nliving skills training; (iv) environmental accessibility adaptations;\n(v) costs of community transition services; (vi) assistive technology;\n(vii) adult day health; (viii) staff for safety assurance; (ix)\nnon-medical support services needed to maintain independence; (x)\nrespite services; and (xi) such other home and community based services\nas may be approved by the secretary of the federal department of health\nand human services.\n g. The department of health shall designate who may provide the\nnursing facility transition and diversion services identified in\nparagraph f of this subdivision, subject to the approval of the\ncommissioner of health.\n h. Before a person may participate in the nursing transition waiver\nprogram specified in this subdivision, the regional resource development\nspecialists shall determine that:\n (i) the individual is at least eighteen years of age and eligible for\nand in receipt of medicaid authorization for long term care services,\nincluding nursing facility services; and\n (ii) the individual resides in a nursing facility and/or has been\nassessed and determined to require nursing facility care.\n 7. a. The commissioner of health shall apply for a home and\ncommunity-based waiver, pursuant to subdivision (c) of section nineteen\nhundred fifteen of the federal social security act, in order to provide\nhome and community-based services not presently included in the medical\nassistance program.\n b. Persons eligible for participation in the waiver program shall:\n (i) be twenty-one years of age or under;\n (ii) have a developmental disability, as such term is defined in\nsubdivision twenty-two of section 1.03 of the mental hygiene law;\n (iii) demonstrate complex health care needs, as defined in paragraph c\nof this subdivision;\n (iv) require the level of care provided by an intermediate care\nfacility for the developmentally disabled;\n (v) not be hospitalized or receiving care in a nursing facility, an\nintermediate care facility for the developmentally disabled or any other\ninstitution;\n (vi) be capable of being cared for in the community if provided with\ncase management services, respite services, home adaptation, and any\nother home and community-based services, other than room and board, as\nmay be approved by the secretary of the federal department of health and\nhuman services, in addition to other services provided under this title,\nas determined by the assessment required by paragraph f of this\nsubdivision;\n (vii) be ineligible for medical assistance because the income and\nresources of responsible relatives are deemed available to him or her,\ncausing him or her to exceed the income or resource eligibility level\nfor such assistance;\n (viii) be capable of being cared for at less cost in the community\nthan in an intermediate care facility for the developmentally disabled;\nand\n (ix) meet such other criteria as may be established by the\ncommissioner of health, in conjunction with the commissioner of the\noffice for people with developmental disabilities, as may be necessary\nto administer the provisions of this subdivision in an equitable manner,\nincluding those criteria established pursuant to paragraph d of this\nsubdivision.\n c. For purposes of this subdivision, persons who "demonstrate complex\nhealth care needs", shall be defined as persons who require medical\ntherapies that are designed to replace or compensate for a vital body\nfunction or avert immediate threat to life; that is, persons who rely on\nmedical devices, nursing care, monitoring or prescribed medical therapy\nfor the maintenance of life over a period expected to extend beyond\ntwelve months.\n d. The commissioner of health, in conjunction with the commissioner of\nthe office for people with developmental disabilities, shall establish\nselection criteria to ensure that participants are those who are most in\nneed and reflect an equitable geographic distribution. Such selection\ncriteria shall include, but not be limited to, the imminent risk of\ninstitutionalization, the financial burden imposed upon the family as a\nresult of the child's health care needs, and the level of stress within\nthe family unit due to the unrelieved burden of caring for the child at\nhome.\n e. Social services districts, in consultation with the office for\npeople with developmental disabilities, shall assess the eligibility of\npersons in accordance with the provisions of paragraph b of this\nsubdivision, as well as the selection criteria established by the\ncommissioner of health and the commissioner of the office for people\nwith developmental disabilities as required by paragraph d of this\nsubdivision.\n f. The commissioner of health, in conjunction with the commissioner of\nthe office for people with developmental disabilities, shall designate\npersons to assess the eligibility of persons under consideration for\nparticipation in the waiver program. Persons designated by such\ncommissioners may include the person's physician, a representative of\nthe social services district, representative of the appropriate\ndevelopmental disabilities services office and such other persons as the\ncommissioners deem appropriate. The assessment shall include, but need\nnot be limited to, an evaluation of the health, psycho-social,\ndevelopmental, habilitation and environmental needs of the person and\nshall serve as the basis for the development and provision of an\nappropriate plan of care for such person.\n g. Prior to a person's participation in the waiver program, the office\nfor people with developmental disabilities shall undertake or arrange\nfor the development of a written plan of care for the provision of\nservices consistent with the level of care determined by the assessment,\nin accordance with criteria established by the commissioner of health,\nin consultation with the commissioner of the office for people with\ndevelopmental disabilities. Such plan of care shall be reviewed by such\ncommissioners prior to the provision of services pursuant to the waiver\nprogram.\n h. Home and community-based services which may be provided to persons\nspecified in paragraph b of this subdivision shall, in addition to those\nservices otherwise authorized, include (i) case management services;\n(ii) respite services; (iii) home adaptation, and (iv) such other home\nand community-based services, other than room and board, as may be\napproved by the secretary of the federal department of health and human\nservices.\n i. The office for people with developmental disabilities shall\ndesignate who may provide the home and community-based services\nidentified in paragraph h of this subdivision, subject to the approval\nof the commissioner of health.\n j. Notwithstanding any other provision of this chapter other than\nsubdivision six of this section or any other law to the contrary, for\npurposes of determining medical assistance eligibility for persons\nspecified in paragraph b of this subdivision, the income and resources\nof a responsible relative shall not be deemed available for as long as\nthe person meets the criteria specified in this subdivision.\n k. Before a person may participate in the waiver program specified in\nparagraph a of this subdivision, the office for people with\ndevelopmental disabilities shall determine that there is a reasonable\nexpectation that the annual medical assistance expenditures for such\nperson under the waiver would not exceed the expenditures for care in an\nintermediate care facility for the developmentally disabled that would\nhave been made had the waiver not been granted.\n l. The commissioner of health, in conjunction with the commissioner of\nthe office for people with developmental disabilities, shall review the\nplans of care and expenditure estimates prior to the participation of\nany person in the waiver program.\n m. Within one year of federal waiver approval, and on an annual basis\nthereafter, until such time as the waiver program is fully implemented,\nthe commissioner of health, in conjunction with the commissioner of the\noffice for people with developmental disabilities, shall report on the\nstatus of the waiver program to the governor and the legislature. Such\nreport shall specify the number of children participating in the waiver\nprogram, the geographic distribution of those so participating, health\nprofiles, service costs and length of time the children have\nparticipated in the waiver program. The report shall also provide\nfollow-up information on children who have withdrawn from the waiver\nprogram, including data on residential program placements.\n n. This subdivision shall be effective only if, and as long as,\nfederal financial participation is available for expenditures incurred\nunder this subdivision.\n 7-a. a. The commissioner of health in consultation with the\ncommissioner of developmental disabilities shall apply for a home and\ncommunity-based waiver, pursuant to subdivision (c) of section nineteen\nhundred fifteen of the federal social security act, in order to provide\nhome and community-based services for a population of persons with\ndevelopmental disabilities, as such term is defined in section 1.03 of\nthe mental hygiene law.\n b. Persons eligible for participation in the waiver program shall:\n (i) have a developmental disability as such term is defined in\nsubdivision twenty-two of section 1.03 of the mental hygiene law;\n (ii) meet the level of care criteria provided by an intermediate care\nfacility for the developmentally disabled;\n (iii) be eligible for Medicaid;\n (iv) live at home or in an individualized residential alternative,\ncommunity residence or family care home, operated or licensed by the\noffice for people with developmental disabilities;\n (v) be capable of being cared for in the community if provided with\nsuch services as respite, home adaptation, or other home and\ncommunity-based services, other than room and board, as may be approved\nby the secretary of the federal department of health and human services,\nin addition to other services provided under this title, as determined\nby the assessment required by paragraph c of this subdivision;\n (vi) have a demonstrated need for home and community based waiver\nservices; and\n (vii) meet such other criteria as may be established by the\ncommissioner of health and the commissioner of developmental\ndisabilities, as may be necessary to administer the provisions of this\nsubdivision.\n c. The commissioner of developmental disabilities shall assess the\neligibility of persons enrolled, or seeking to enroll, in the waiver\nprogram. The assessment shall include, but need not be limited to, an\nevaluation of the health, psycho-social, developmental, habilitation and\nenvironmental needs of the person and shall serve as the basis for the\ndevelopment and provision of an appropriate person centered plan of care\nfor such person.\n d. The office for people with developmental disabilities shall\nundertake or arrange for the development of a written person centered\nplan of care for each person enrolled in the waiver. Such person\ncentered plan of care shall describe the provision of home and community\nbased waiver services consistent with the assessment for each person.\n e. The office for people with developmental disabilities shall review\nthe person centered plan of care and authorize those home and community\nbased services to be included in the person centered plan of care,\ntaking into account the person's assessed needs, valued outcomes and\navailable resources.\n f. The commissioners of developmental disabilities and health shall\ndetermine quality standards for organizations providing services under\nsuch waiver and shall authorize organizations that meet such standards\nto provide such services.\n g. The commissioner of developmental disabilities or health may\npromulgate rules and regulations as necessary to effectuate the\nprovisions of this section.\n h. This subdivision shall be effective only if, and as long as,\nfederal financial participation is available for expenditures incurred\nunder this subdivision.\n 7-b. Services and needs assessment. The assessment completed pursuant\nto subdivision seven-a of this section shall be based upon a valid and\nreliable assessment tool. The assessment shall also include an\nevaluation of the individual's home environment, including but not\nlimited to, the ability of family and/or caregivers to provide supports\noutside of those within the waiver, including but not limited to,\nactivities of daily living.\n 7-c. The commissioner of health in consultation with the commissioner\nof developmental disabilities is authorized to submit the appropriate\nwaivers, including, but not limited to, those authorized pursuant to\nsection eleven hundred fifteen of the federal social security act, in\norder to achieve the purposes of high-quality and integrated care and\nservices for a population of persons with developmental disabilities, as\nsuch term is defined in section 1.03 of the mental hygiene law. Such\nwaiver applications shall be executed consistent with subdivisions\nseven, seven-a, and seven-b of this section, to the extent those\nsections comply with the requirements of section eleven hundred fifteen\nof the federal social security act. Nothing in subdivision seven of this\nsection shall prevent the commissioner of health, in consultation with\nthe commissioner of developmental disabilities, from submitting waiver\napplications expanding eligibility under such waivers to children under\neighteen years or age who are eligible for medical assistance.\n 8. Notwithstanding any inconsistent provision of this chapter or any\nother law to the contrary, income and resources which are otherwise\nexempt from consideration in determining a person's eligibility for\nmedical care, services and supplies available under this title, shall be\nconsidered available for the payment or part payment of the costs of\nsuch medical care, services and supplies as required by federal law and\nregulations.\n 9. a. The commissioner shall apply for a general waiver, pursuant to\nsubdivision (c) of section nineteen hundred fifteen of the federal\nsocial security act, in order to provide medical assistance for persons\nspecified in paragraphs b and c of this subdivision and reimbursement\nfor several home and community-based services not presently included in\nthe medical assistance program. If granted the general waiver, the\ncommissioner may authorize such persons to receive services under the\ngeneral waiver to the extent funds are appropriated for transfer to the\ndepartment for the state share of medical assistance payments for such\nwaiver services from the budget of the office of mental health.\n b. Persons eligible for inclusion in the general waiver shall:\n (i) be under twenty-one years of age;\n (ii) have a mental illness, as such term is defined in subdivision\ntwenty of section 1.03 of the mental hygiene law;\n (iii) demonstrate complex health or mental health care needs, as\ndefined in paragraph d of this subdivision;\n (iv) require the level of care provided by a hospital as defined in\nsubdivision ten of section 1.03 of the mental hygiene law which provides\nintermediate or long-term care and treatment, or within the past six\nmonths have been hospitalized for at least thirty consecutive days, or\nhave resided in such a hospital for at least one hundred eighty\nconsecutive days;\n (v) be capable of being cared for in the community if provided with\ncase management services, clinical interventions, crisis services,\nsocial training, rehabilitation services, counseling, respite services,\nmedication therapy, partial hospitalization, environmental\nmodifications, educational and related services, and/or medical social\nservices, in addition to other services, as determined by the assessment\nrequired by paragraph g of this subdivision and included in the written\nplan of care developed pursuant to paragraph h of this subdivision;\n (vi) be eligible or, if discharged, would be eligible for medical\nassistance, or are ineligible for medical assistance because the income\nand resources of responsible relatives are or, if discharged, would be\ndeemed available to such persons causing them to exceed the income or\nresource eligibility level for such assistance;\n (vii) be capable of being cared for at less cost in the community than\nin a hospital, as defined in subdivision ten of section 1.03 of the\nmental hygiene law; and\n (viii) meet such other criteria as may be established by the\ncommissioner of mental health, in conjunction with the commissioner, as\nmay be necessary to administer the provisions of this subdivision in an\nequitable manner, including those criteria established pursuant to\nparagraph e of this subdivision.\n c. Persons eligible for inclusion in the general waiver shall meet all\nthe requirements set forth in subparagraphs (i) through (viii) of\nparagraph b of this subdivision; and shall be eligible for, shall have\napplied for, or shall reside in an institutional placement including a\nhospital as defined in subdivision ten of section 1.03 of the mental\nhygiene law which provides intermediate or long-term care and treatment.\n d. For purposes of this subdivision, persons who "demonstrate complex\nhealth or mental health care needs", shall be defined as persons who\nrequire medical or mental health therapies, care or treatments that are\ndesigned to replace or compensate for a vital functional limitation or\nto avert an immediate threat to life; that is, persons who rely on\nmental health care, nursing care, monitoring, or prescribed medical or\nmental health therapy for the maintenance of quality of life over a\nperiod expected to extend beyond twelve months.\n e. The commissioner of mental health, in conjunction with the\ncommissioner, shall establish selection criteria to ensure that\nparticipants are those who are most in need. Such selection criteria\nshall include, but not be limited to: the need for continued\nhospitalization or the risk of hospitalization; the financial burden\nimposed upon the family, or which would be imposed upon the family if an\ninstitutionalized participant were to be discharged, as a result of the\nchild's health or mental health care needs; and the level of stress or\nthe anticipated level of stress within the family unit due to the\nunrelieved burden of caring for the child at home.\n f. Social services districts, in conjunction with the office of mental\nhealth and the local governmental unit as defined in section 41.03 of\nthe mental hygiene law, shall determine the eligibility of persons in\naccordance with the provisions of paragraphs b and c of this\nsubdivision, as well as the selection criteria established by the\ncommissioner and the commissioner of mental health as required by\nparagraph e of this subdivision.\n g. The commissioner of mental health, in conjunction with the\ncommissioner, shall designate persons to undertake an assessment to\ndetermine the eligibility of persons under consideration for inclusion\nin the general waiver. Persons designated by such commissioners may\ninclude the potentially eligible person's physician, a representative of\nthe local governmental unit as defined in section 41.03 of the mental\nhygiene law, a representative of the appropriate hospital or regional\noffice of the office of mental health, and such other persons as the\ncommissioners deem appropriate. The assessment shall include, but not be\nlimited to, an evaluation of the mental health, health, psycho-social,\nrehabilitation and environmental needs of the person, and shall serve as\nthe basis for the development and provision of an appropriate plan of\ncare for such person.\n h. Prior to a person's inclusion in the general waiver, the office of\nmental health and the local governmental unit as defined in section\n41.03 of the mental hygiene law, shall undertake or arrange for the\ndevelopment of a written plan of care, including identification of\nservice providers if known, for the provision of services in\nconsultation with the individual and their family whenever clinically\nappropriate, consistent with the level of care determined by the\nassessment, in accordance with criteria established by the commissioner\nof mental health, in consultation with the commissioner. If a provider\nof services is identified in a written plan of care, such provider shall\nbe designated pursuant to paragraph j of this subdivision. Such plan of\ncare shall be reviewed by such commissioners and approved by the\ncommissioner of mental health prior to the provision of services\npursuant to the general waiver.\n i. Home and community-based services which may be provided to persons\nspecified in paragraphs b and c of this subdivision shall, in addition\nto those services otherwise authorized, include but are not limited to\n(i) case management services; (ii) clinical interventions; (iii) crisis\nservices; (iv) social training; (v) rehabilitation services; (vi)\ncounseling; (vii) respite services; (viii) medication therapy; (ix)\npartial hospitalization; (x) environmental modifications; (xi)\neducational and related services; (xii) medical social services; and\nother services included in the written plan of care developed pursuant\nto paragraph h of this subdivision.\n j. The office of mental health, in conjunction with the social\nservices district and the local governmental unit, shall designate who\nmay provide the home and community-based services identified in\nparagraph i of this subdivision.\n k. Notwithstanding any provision of this chapter other than\nsubdivision six or seven of this section, or any other law to the\ncontrary, for purposes of determining medical assistance eligibility for\npersons specified in paragraphs b and c of this subdivision, the income\nand resources of a responsible relative shall not be deemed available\nfor as long as the person meets the criteria specified in this\nsubdivision.\n l. Before a person may participate in the general waiver specified in\nparagraph a of this subdivision, the social services district and the\noffice of mental health shall determine that there is a reasonable\nexpectation that the annual medical assistance expenditures for such\nperson under the waiver would not exceed the expenditures for care in a\nhospital, as defined in subdivision ten of section 1.03 of the mental\nhygiene law, that would have been made had the waiver not been granted.\n m. The commissioner, in conjunction with the commissioner of mental\nhealth, shall review the expenditure estimates determined by social\nservices districts and the office of mental health, prior to the\ninclusion of any person in the general waiver.\n n. Within one year of federal waiver approval, and on an annual basis\nthereafter, until such time as the waiver is fully implemented, the\ncommissioner of mental health, in conjunction with the commissioner,\nshall report on the status of the general waiver to the governor, the\nlegislature, including the respective chairpersons of the senate and\nassembly committees of mental health and the chairs of the senate\nfinance and assembly ways and means committees and the director of the\ndivision of the budget. Such report shall specify the number of children\nincluded in the waiver, the geographic distribution of those included,\nhealth and mental health profiles, utilization and costs of services by\nregion including costs avoided in residential treatment facilities and\ninpatient facilities operated by the office of mental health, the length\nof time the children have participated in the waiver and regional\ninformation on the status of waiting lists for waiver services and for\nservices in residential settings, where appropriate. The report shall\nalso provide follow-up information on children who have withdrawn from\nthe waiver, including data on residential program placements.\n o. This subdivision shall be effective if, and as long as, federal\nfinancial participation is available for expenditures incurred under\nthis subdivision.\n p. Nothing herein shall be construed to create an entitlement to\nservices under the approved general waiver implemented by the\ncommissioner in accordance with this subdivision.\n 11. The commissioner of health shall, consistent with this title, make\nany necessary amendments to the state plan for medical assistance\nsubmitted pursuant to section three hundred sixty-three-a of this title,\nin order to ensure federal financial participation in expenditures under\nsubparagraphs twelve and thirteen of paragraph (a) of subdivision one of\nthis section. Notwithstanding any other provision of law to the\ncontrary, medical assistance under subparagraphs twelve and thirteen of\nparagraph (a) of subdivision one of this section shall be provided only\nto the extent permitted under federal law, if, for so long as, and to\nthe extent that federal financial participation is available therefor.\n 12. (a) Notwithstanding any provision of law to the contrary, the\ncommissioner of health, in consultation with the office of children and\nfamily services, shall develop and submit applications for waivers\npursuant to section nineteen hundred fifteen of the federal social\nsecurity act as may be necessary to provide medical assistance,\nincluding services not presently included in the medical assistance\nprogram, for persons described in paragraph (b) of this subdivision. If\ngranted such waivers, the commissioner of health, on the advice and\nrecommendation of the commissioner of children and family services, may\nauthorize such persons to receive such assistance to the extent funds\nare appropriated therefor.\n (b) Persons eligible for inclusion in the waiver program established\nby this subdivision shall be residents of New York state under the age\nof twenty-one years, who are eligible for care in a medical institution,\nwho have had the responsibility for their care and placement transferred\nto the local commissioner of a social services district or to the office\nof children and family services as adjudicated juvenile delinquents\nunder article three of the family court act, where placement is in a\nnon-secure setting, and who:\n (i) have a diagnosis of a mental disorder under the most recent\nedition of the Diagnostic and Statistical Manual of Mental Disorders;\n (ii) have a diagnosis of a developmental disability as defined in\nsection 1.03 of the mental hygiene law; or\n (iii) have a physical disability.\n (c) Services which may be provided to persons specified in paragraph\n(b) of this subdivision, in addition to services otherwise authorized,\nmay include but are not limited to:\n (i) services that will permit children to be better served, prevent\ninstitutionalization, and allow utilization at lower-levels of\ninstitutional care;\n (ii) case management services;\n (iii) respite services;\n (iv) medical social services;\n (v) nutritional counseling;\n (vi) respiratory therapy;\n (vii) home adaptation and/or environmental modifications;\n (viii) clinical interventions;\n (ix) crisis services;\n (x) social training;\n (xi) habilitation and rehabilitation services;\n (xii) counseling;\n (xiii) medication therapy;\n (xiv) partial hospitalization;\n (xv) educational and related services; and\n (xvi) other services included in the written plan of care.\n (d) Notwithstanding any provision of this chapter or any other law to\nthe contrary, for purposes of determining medical assistance eligibility\nfor persons specified in paragraph (b) of this subdivision, the income\nand resources of a legally responsible relative shall not be deemed\navailable for as long as the person meets the criteria specified in this\nsubdivision; provided, however, that such income shall continue to be\ndeemed unavailable should responsibility for the care and placement of\nthe person be returned to his or her parent or other legally responsible\nperson.\n (e) Before a person may participate in the waiver program established\nby this subdivision, the social services district that is fiscally\nresponsible for the person shall determine that there is a reasonable\nexpectation that annual medical assistance expenditures for such person\nwill not exceed federal requirements.\n (f) The eligibility and benefits authorized by this subdivision shall\nbe applicable if, and as long as, federal financial participation is\navailable for expenditures incurred under this subdivision. The\neligibility and benefits authorized by this subdivision shall not apply\nunless all necessary approvals under federal law and regulation have\nbeen obtained to receive federal financial participation in the costs of\nservices provided pursuant to this subdivision.\n (g) Nothing in this subdivision shall be construed to create an\nentitlement to services under the waiver program established by this\nsubdivision.\n (h) A person participating in the waiver program established by this\nsubdivision may continue participation in the program until it is no\nlonger consistent with the plan of care, or until age twenty-one,\nwhichever occurs earlier, notwithstanding the person's status as having\nbeen discharged from the care and placement of the local commissioner of\na social services district or the commissioner of children and family\nservices, including adoption or participation in the kinship\nguardianship assistance program under title ten of article six of this\nchapter.\n 13. The commissioner of health, in consultation with the commissioner\nof the office of children and family services, shall make any available\namendments to the state plan for medical assistance submitted pursuant\nto section three hundred sixty-three-a of this title, or, if an\namendment is not possible, develop and submit an application for any\nwaiver under the federal social security act that may be available to\nprovide medical assistance for those children receiving kinship\nguardianship assistance payments under title ten of article six of this\nchapter who are not automatically eligible for such medical assistance\nunder title IV-E of the federal social security act.\n 14. The commissioner of health may make any available amendments to\nthe state plan for medical assistance submitted pursuant to section\nthree hundred sixty-three-a of this title, or, if an amendment is not\npossible, develop and submit an application for any waiver or approval\nunder the federal social security act that may be necessary to disregard\nor exempt an amount of income, for the purpose of assisting with housing\ncosts, for individuals receiving coverage of nursing facility services\nunder this title, other than short-term rehabilitation services, and for\nindividuals in receipt of medical assistance while in an adult home, as\ndefined in subdivision twenty-five of section two of this chapter, who:\nare (i) discharged to the community; and (ii) if eligible, enrolled or\nrequired to enroll and have initiated the process of enrolling in a plan\ncertified pursuant to section forty-four hundred three-f of the public\nhealth law; and (iii) do not meet the criteria to be considered an\n"institutionalized spouse" for purposes of section three hundred\nsixty-six-c of this title.\n 15. The commissioner may contract with one or more entities to engage\nin education, outreach services, and facilitated enrollment activities\nfor aged, blind, and disabled persons who may be eligible for coverage\nunder this title.\n 16. (a) The commissioner of health is authorized to submit the\nappropriate waivers and/or any other required requests for federal\napproval, including but not limited to, those authorized in section\neleven hundred fifteen of the federal social security act, in order to\nestablish expanded medical assistance eligibility for working disabled\nindividuals. Such waiver applications shall be executed consistent with\nparagraphs (b), (c), (d) and (e) of this subdivision, to the extent\nthose sections comply with the requirements of section eleven hundred\nfifteen of the federal social security act. Notwithstanding\nsubparagraphs five and six of paragraph (c) of subdivision one of this\nsection and subdivision twelve of section three hundred sixty-seven-a of\nthis title, or any other provision of law to the contrary, if granted\nsuch waiver, the commissioner of health may authorize eligible persons\nto receive medical assistance pursuant to the waiver if, for so long as,\nand to the extent that, financial participation is available therefor.\nThe waiver application shall provide for thirty thousand persons to be\neligible to participate in such waiver.\n (b) Individuals eligible for participation in such waiver shall:\n (i) be a disabled individual, defined as having a medically\ndeterminable impairment of sufficient severity and duration to qualify\nfor benefits under Titles II or XVI of the social security act;\n (ii) be at least sixteen years of age;\n (iii) be otherwise eligible for medical assistance benefits, but for\nearnings and/or resources in excess of the allowable limit;\n (iv) have net available income, determined in accordance with\nsubdivision two of this section, that does not exceed two thousand two\nhundred fifty percent of the applicable federal poverty line, as defined\nand updated by the United States department of health and human\nservices;\n (v) have resources, as defined in paragraph (e) of subdivision two of\nsection three hundred sixty-six-c of this title, other than retirement\naccounts, that do not exceed three hundred thousand dollars;\n (vi) contribute to the cost of medical assistance provided pursuant to\nthis paragraph in accordance with paragraph (d) of this subdivision; and\n (vii) meet such other criteria as may be established by the\ncommissioner as may be necessary to administer the provisions of this\nsubdivision in an equitable manner.\n (c) An individual at least sixteen years of age who: is employed;\nceases to be eligible for participation in such waiver pursuant to\nparagraph (b) of this subdivision because the person, by reason of\nmedical improvement, is determined at the time of a regularly scheduled\ncontinuing disability review to no longer be certified as disabled under\nthe social security act; continues to have a severe medically\ndeterminable impairment, to be determined in accordance with applicable\nfederal regulations; and contributes to the cost of medical assistance\nprovided pursuant to this paragraph in accordance with paragraph (d) of\nthis subdivision, shall be eligible for participation in such waiver.\nFor purposes of this paragraph, a person is considered to be employed if\nthe person is earning at least the applicable minimum wage under section\nsix of the federal fair labor standards act and working at least forty\nhours per month.\n (d) Prior to receiving medical assistance pursuant to such waiver, a\nperson whose net available income is greater than or equal to two\nhundred fifty percent of the applicable federal poverty line shall pay a\nmonthly premium, in accordance with a procedure to be established by the\ncommissioner, provided that no enrollee shall pay a monthly premium that\nexceeds exceed eight and one-half percent of the enrollee's monthly\nincome. The amount of such premium for a person whose net available\nincome is greater than or equal to two hundred fifty percent of the\napplicable federal poverty line, but less than three hundred percent of\nthe applicable federal poverty line shall be three hundred and\nforty-seven dollars but shall not exceed four percent of the enrollee's\nmonthly income. The amount of such premium for a person whose net\navailable income is greater than or equal to three hundred percent of\nthe applicable federal poverty line, but less than four hundred percent\nof the applicable federal poverty line shall be five hundred eighteen\ndollars but shall not exceed six percent of the enrollee's monthly\nincome. The amount of such premium for a person whose net available\nincome is greater than or equal to four hundred percent of the\napplicable federal poverty line, but less than five hundred percent of\nthe applicable federal poverty line shall be seven hundred and\nseventy-nine dollars but shall not exceed eight and one-half percent of\nthe enrollee's monthly income. The amount of such premium for a person\nwhose net available income is equal to or greater than five hundred\npercent of the applicable federal poverty line shall be one thousand\nthirty-three dollars but shall not exceed eight and one-half percent of\nthe enrollee's monthly income. No premium shall be required from a\nperson whose net available income is less than two hundred fifty percent\nof the applicable federal poverty line.\n (e) Notwithstanding any other provision of this section or any other\nlaw to the contrary, for purposes of determining medical assistance\neligibility for persons specified in paragraph (b) or (c) of this\nsubdivision, the income and resources of responsible relatives shall not\nbe deemed available for as long as the person meets the criteria\nspecified in this subdivision.\n