N.Y. Social Services Law § 366: Eligibility

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

(1) "benchmark coverage" refers to medical assistance coverage defined

in subdivision one of section three hundred sixty-five-a of this title;

(2) "caretaker relative" means a relative of a dependent child by

blood, adoption, or marriage with whom the child is living, who assumes

primary responsibility for the child's care and who is one of the

following:

(i) the child's father, mother, grandfather, grandmother, brother,

sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt,

first cousin, nephew, or niece; or

(ii) the spouse of such parent or relative, even after the marriage is

terminated by death or divorce;

(3) "family size" means the number of persons counted as members of an

individual's household; with respect to individuals whose medical

assistance eligibility is based on modified adjusted gross income, in

determining the family size of a pregnant woman, or of other individuals

who have a pregnant woman in their household, the pregnant woman is

counted as herself plus the number of children she is expected to

deliver;

(4) "federal poverty line" means the poverty line defined and annually

revised by the United States department of health and human services;

(5) "household", for purposes of determining the financial eligibility

of individuals whose medical assistance eligibility is based on modified

adjusted gross income, shall mean:

(i) Basic rule for taxpayers not claimed as a tax dependent. In the

case of an individual who expects to file a tax return for the taxable

year in which an initial determination or renewal of eligibility is

being made, and who does not expect to be claimed as a tax dependent by

another taxpayer, the household consists of the taxpayer and, subject to

clause (v) of this subparagraph, all persons whom such individual

expects to claim as a tax dependent;

(ii) Basic rule for individuals claimed as a tax dependent. In the

case of an individual who expects to be claimed as a tax dependent by

another taxpayer for the taxable year in which an initial determination

or renewal of eligibility is being made, the household is the household

of the taxpayer claiming such individual as a tax dependent, except that

the household must be determined in accordance with clause (iii) of this

subparagraph in the case of:

(A) Individuals other than a spouse or child who expect to be claimed

as a tax dependent by another taxpayer; and

(B) Individuals under nineteen years of age, or under twenty-one years

of age if a full-time student, who expect to be claimed by one parent as

a tax dependent and are living with both parents but whose parents do

not expect to file a joint tax return; and

(C) Individuals under nineteen years of age, or under twenty-one years

of age if a full-time student, who expect to be claimed as a tax

dependent by a non-custodial parent. For purposes of this subclause:

(1) A court order or binding separation, divorce, or custody agreement

establishing physical custody controls; or

(2) If there is no such order or agreement or in the event of a shared

custody agreement, the custodial parent is the parent with whom the

child spends most nights;

(iii) Rules for individuals who neither file a tax return nor are

claimed as a tax dependent. In the case of individuals who do not expect

to file a Federal tax return and do not expect to be claimed as a tax

dependent for the taxable year in which an initial determination or

renewal of eligibility is being made, or who are described in subclauses

(A), (B), or (C) of clause (ii) of this subparagraph, the household

consists of the individual and, if living with the individual:

(A) The individual's spouse;

(B) The individual's children under nineteen years of age, or under

twenty-one years of age if a full-time student; and

(C) In the case of an individual under nineteen years of age, or under

twenty-one years of age if a full-time student, the individual's parents

and the individual's siblings under nineteen years of age, or under

twenty-one years of age if a full-time student;

(iv) Married couples. In the case of a married couple living together,

each spouse will be included in the household of the other spouse,

regardless of whether they expect to file a joint tax return under

section six thousand thirteen of the internal revenue code or whether

one spouse expects to be claimed as a tax dependent by the other spouse.

(v) For purposes of clause (i) of this subparagraph, if a taxpayer

cannot reasonably establish that another individual is a tax dependent

of the taxpayer for the tax year in which Medicaid is sought, the

inclusion of such individual in the household of the taxpayer is

determined in accordance with clause (iii) of this subparagraph.

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

(7) "MAGI-based income" means income calculated using the same

methodologies used to determine MAGI under section 36B(d)(2)(B) of the

Internal Revenue Code, with the exception of lump sum payments, certain

educational scholarships, and certain American Indian and Alaska Native

income, as specified by the commissioner of health consistent with

federal regulation at 42 CFR 435.603 or any successor regulation;

(8) "MAGI household income" means, with respect to an individual whose

medical assistance eligibility is based on modified adjusted gross

income, the sum of the MAGI-based income of every person included in the

individual's MAGI household, except that it shall not include the

MAGI-based income of the following persons if such persons are not

expected to be required to file a tax return in the taxable year in

which eligibility for medical assistance is being determined:

(i) a biological, adopted, or step child who is included in the

individual's MAGI household; or

(ii) a person, other than a spouse or a biological, adopted, or step

child, who is expected to be claimed as a tax dependent by the

individual;

(9) "standard coverage" refers to medical assistance coverage defined

in subdivision two of section three hundred sixty-five-a of this title.

(b) MAGI eligibility groups. Individuals listed in this paragraph are

eligible for medical assistance based on modified adjusted gross income.

In determining the eligibility of an individual for the MAGI eligibility

group with the highest income standard under which the individual may

qualify, an amount equivalent to five percentage points of the federal

poverty level for the applicable family size will be deducted from the

household income.

(1) An individual is eligible for benchmark coverage if his or her

MAGI household income does not exceed one hundred thirty-three percent

of the federal poverty line for the applicable family size and he or she

is:

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

(ii) not pregnant; and

(iii) not entitled to or enrolled for benefits under parts A or B of

title XVIII of the federal social security act; and

(iv) not otherwise eligible for and receiving coverage under

subparagraphs two and three of this paragraph; and

(v) not a parent or other caretaker relative of a dependent child

under twenty-one years of age and living with such child, unless such

child is receiving benefits under this title or under title 1-A of

article twenty-five of the public health law, or otherwise is enrolled

in minimum essential coverage.

(2) A pregnant person or an infant younger than one year of age is

eligible for standard coverage if their MAGI household income does not

exceed the MAGI-equivalent of two hundred percent of the federal poverty

line for the applicable family size, which shall be calculated in

accordance with guidance issued by the secretary of the United States

department of health and human services.

(3) A child who is at least one year of age but younger than nineteen

years of age is eligible for standard coverage if such child's MAGI

household income does not exceed the MAGI-equivalent of one hundred

thirty-three percent of the federal poverty line for the applicable

family size, which shall be calculated in accordance with guidance

issued by the Secretary of the United States department of health and

human services.

(4) An individual who is a pregnant woman or is a member of a family

that contains a dependent child living with a parent or other caretaker

relative is eligible for standard coverage if their MAGI household

income does not exceed one hundred thirty-three percent of the federal

poverty line for the applicable family size, which shall be calculated

in accordance with guidance issued by the Secretary of the United States

department of health and human services; for purposes of this

subparagraph, the term dependent child means a person who is under

eighteen years of age, or is eighteen years of age and a full-time

student, who is deprived of parental support or care by reason of the

death, continued absence, or physical or mental incapacity of a parent,

or by reason of the unemployment of the parent, as defined by the

department of health.

(5) A child who is under twenty-one years of age and who was in foster

care under the responsibility of the state on his or her eighteenth

birthday is eligible for standard coverage; notwithstanding any

provision of law to the contrary, the provisions of this subparagraph

shall be effective only if and for so long as federal financial

participation is available in the costs of medical assistance furnished

hereunder.

(6) An individual who is not otherwise eligible for medical assistance

under this section is eligible for coverage of family planning services

reimbursed by the federal government at a rate of ninety percent, and

for coverage of those services identified by the commissioner of health

as services generally performed as part of or as a follow-up to a

service eligible for such ninety percent reimbursement, including

treatment for sexually transmitted diseases, if his or her income does

not exceed the MAGI-equivalent of two hundred percent of the federal

poverty line for the applicable family size, which shall be calculated

in accordance with guidance issued by the secretary of the United States

department of health and human services; provided further that the

commissioner of health is authorized to establish criteria for

presumptive eligibility for services provided pursuant to this

subparagraph in accordance with all applicable requirements of federal

law or regulation pertaining to such eligibility.

* (7) A child who is nineteen or twenty years of age living with his

or her parent will be eligible for standard coverage if the sum of the

MAGI-based income of every person included in the child's MAGI household

exceeds one hundred thirty-three percent, but does not exceed one

hundred fifty percent, of the federal poverty line for the applicable

family size.

* NB Repealed October 1, 2029

(7-a) An individual is eligible for benchmark coverage if his or her

MAGI household income exceeds one hundred thirty-three percent of the

federal poverty line for the applicable family size and he or she:

(i) was eligible or would have been eligible for the family health

plus program without federal financial participation in the costs of

medical care and services under such program; and

(ii) is not eligible to enroll in a qualified health plan offered

through the state health benefit exchange established pursuant to the

federal Patient Protection and Affordable Care Act (P.L. 111-148), as

amended by the federal Health Care and Education Reconciliation Act of

2010 (P.L. 111-152).

(c) Non-MAGI eligibility groups. Individuals listed in this paragraph

are eligible for standard coverage. Where a financial eligibility

determination must be made by the medical assistance program for

individuals in these groups, such financial eligibility will be

determined in accordance with subdivision two of this section.

(1) An individual receiving or eligible to receive federal

supplemental security income payments and/or additional state payments

pursuant to title six of this article; any inconsistent provision of

this chapter or other law notwithstanding, the department may designate

the office of temporary and disability assistance as its agent to

discharge its responsibility, or so much of its responsibility as is

permitted by federal law, for determining eligibility for medical

assistance with respect to persons who are not eligible to receive

federal supplemental security income payments but who are receiving a

state administered supplementary payment or mandatory minimum supplement

in accordance with the provisions of subdivision one of section two

hundred twelve of this article.

(2) An individual who, although not receiving public assistance or

care for his or her maintenance under other provisions of this chapter,

has income and resources, including available support from responsible

relatives, that does not exceed the amounts set forth in paragraph (a)

of subdivision two of this section, and is (i) sixty-five years of age

or older, or certified blind or certified disabled or (ii) for reasons

other than income or resources, is eligible for federal supplemental

security income benefits and/or additional state payments.

(3) An individual who, although not receiving public assistance or

care for his or her maintenance under other provisions of this chapter,

has income, including available support from responsible relatives, that

does not exceed the amounts set forth in paragraph (a) of subdivision

two of this section, and is (i) under the age of twenty-one years, or

(ii) a spouse of a cash public assistance recipient living with him or

her and essential or necessary to his or her welfare and whose needs are

taken into account in determining the amount of his or her cash payment,

or (iii) for reasons other than income, would meet the eligibility

requirements of the aid to dependent children program as it existed on

the sixteenth day of July, nineteen hundred ninety-six.

(4) A child in foster care, or a child described in section four

hundred fifty-four or four hundred fifty-eight-d of this chapter.

(5) A disabled individual at least sixteen years of age, but under the

age of sixty-five, who: would be eligible for benefits under the

supplemental security income program but for earnings in excess of the

allowable limit; has net available income that does not exceed two

hundred fifty percent of the applicable federal income official poverty

line, as defined and updated by the United States department of health

and human services, for a one-person or two-person household, as defined

by the commissioner in regulation; has household resources, as defined

in paragraph (e) of subdivision two of section three hundred sixty-six-c

of this title, other than retirement accounts, that do not exceed one

hundred fifty percent of the income amount permitted under subparagraph

seven of paragraph (a) of subdivision two of this section, for a

one-person or two-person household, as defined by the commissioner in

regulation; and contributes to the cost of medical assistance provided

pursuant to this subparagraph in accordance with subdivision twelve of

section three hundred sixty-seven-a of this title; for purposes of this

subparagraph, disabled means having a medically determinable impairment

of sufficient severity and duration to qualify for benefits under

section 1902(a)(10)(A)(ii)(xv) of the social security act.

(6) An individual at least sixteen years of age, but under the age of

sixty-five, who: is employed; ceases to be in receipt of medical

assistance under subparagraph five of this paragraph because the person,

by reason of medical improvement, is determined at the time of a

regularly scheduled continuing disability review to no longer be

eligible for supplemental security income program benefits or disability

insurance benefits under the social security act; continues to have a

severe medically determinable impairment, to be determined in accordance

with applicable federal regulations; and contributes to the cost of

medical assistance provided pursuant to this subparagraph in accordance

with subdivision twelve of section three hundred sixty-seven-a of this

title; for purposes of this subparagraph, a person is considered to be

employed if the person is earning at least the applicable minimum wage

under section six of the federal fair labor standards act and working at

least forty hours per month; or

(7) An individual receiving treatment for breast or cervical cancer

who meets the eligibility requirements of paragraph (d) of subdivision

four of this section or the presumptive eligibility requirements of

subdivision four of section three hundred sixty-four-i of this title.

(8) An individual receiving treatment for colon or prostate cancer who

meets the eligibility requirements of paragraph (e) of subdivision four

of this section or the presumptive eligibility requirements of

subdivision four of section three hundred sixty-four-i of this title.

(9) An individual who:

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

(ii) was in foster care under the responsibility of the state on his

or her eighteenth birthday; and

(iii) was in receipt of medical assistance under this title while in

foster care; and

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

title.

(10) A resident of a home for adults operated by a social services

district, or a residential care center for adults or community residence

operated or certified by the office of mental health, and has not,

according to criteria promulgated by the department consistent with this

title, sufficient income, or in the case of a person sixty-five years of

age or older, certified blind, or certified disabled, sufficient income

and resources, including available support from responsible relatives,

to meet all the costs of required medical care and services available

under this title.

(d) Conditions of eligibility. A person shall not be eligible for

medical assistance under this title unless he or she:

(1) is a resident of the state, or, while temporarily in the state,

requires immediate medical care which is not otherwise available,

provided that such person did not enter the state for the purpose of

obtaining such medical care; and

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

department, in accordance with department regulations: (i) any benefits

which are available to him or her individually from any third party for

care or other medical benefits available under this title and which are

otherwise assignable pursuant to a contract or any agreement with such

third party; or (ii) any rights, of the individual or of any other

person who is eligible for medical assistance under this title and on

whose behalf the individual has the legal authority to execute an

assignment of such rights, to support specified as support for the

purpose of medical care by a court or administrative order; and

(3) cooperates with the appropriate social services official or the

department in establishing paternity or in establishing, modifying, or

enforcing a support order with respect to his or her child; provided,

however, that nothing herein contained shall be construed to require a

payment under this title for care or services, the cost of which may be

met in whole or in part by a third party; notwithstanding the foregoing,

a social services official shall not require such cooperation if the

social services official or the department determines that such actions

would be detrimental to the best interest of the child, applicant, or

recipient, or with respect to pregnant women during pregnancy and during

the one year period beginning on the last day of pregnancy, in

accordance with procedures and criteria established by regulations of

the department consistent with federal law; and

(4) applies for and utilizes group health insurance benefits available

through a current or former employer, including benefits for a spouse

and dependent children, in accordance with the regulations of the

department.

(e) Conditions of coverage. An otherwise eligible person shall not be

entitled to medical assistance coverage of care, services, and supplies

under this title while he or she:

(1) is an inmate or patient in an institution or facility wherein

medical assistance may not be provided in accordance with applicable

federal or state requirements, except for persons described in

subparagraph ten of paragraph (c) of this subdivision or subdivision

one-a or subdivision one-b of this section; or except for certain

services provided to persons in a correctional institution or facility

permitted by a waiver authorized pursuant to section eleven hundred

fifteen of the federal social security act; if, so long as, and to the

extent federal financial participation is available for such

expenditures provided pursuant to such waiver; or

(2) is a patient in a public institution operated primarily for the

treatment of tuberculosis or care of the mentally disabled, with the

exception of: (i) a person sixty-five years of age or older and a

patient in any such institution; (ii) a person under twenty-one years of

age and receiving in-patient psychiatric services in a public

institution operated primarily for the care of the mentally disabled;

(iii) a patient in a public institution operated primarily for the care

of individuals with developmental disabilities who is receiving medical

care or treatment in that part of such institution that has been

approved pursuant to law as a hospital or nursing home; (iv) a patient

in an institution operated by the state department of mental hygiene,

while under care in a hospital on release from such institution for the

purpose of receiving care in such hospital; (v) is a person residing in

a community residence or a residential care center for adults; or (vi)

certain services provided to persons in an institution for mental

diseases permitted by a waiver authorized pursuant to section eleven

hundred fifteen of the federal social security act; if, so long as, and

to the extent federal financial participation is available for such

expenditures provided pursuant to such waiver.

(f) Notwithstanding any inconsistent provision of this title, for an

individual who has income in excess of an applicable income eligibility

standard and is allowed to achieve eligibility for medical assistance

under this title by incurring medical expenses equal to the amount of

such excess income, the amount of excess income may be calculated by

comparing the individual's MAGI household income to the MAGI-equivalent

of the applicable income eligibility standard; provided, however, that

medical assistance shall be furnished pursuant to this paragraph only

if, for so long as, and to the extent that federal financial

participation is available therefor. The commissioner of health shall

make any amendments to the state plan for medical assistance, or apply

for any waiver or approval under the federal social security act that

are necessary to carry out the provisions of this paragraph.

(g) Coverage of certain noncitizens. (1) Applicants and recipients

who are lawfully admitted for permanent residence, or who are

permanently residing in the United States under color of law, or who are

non-citizens in a valid nonimmigrant status, as defined in 8 U.S.C.

1101(a)(15); who are MAGI eligible pursuant to paragraph (b) of this

subdivision; and who would be ineligible for medical assistance coverage

under subdivisions one and two of section three hundred sixty-five-a of

this title solely due to their immigration status if the provisions of

section one hundred twenty-two of this chapter were applied, shall only

be eligible for assistance under this title if enrolled in a standard

health plan offered by a basic health program established pursuant to

section three hundred sixty-nine-gg of this article or a standard health

plan offered by a 1332 state innovation program established pursuant to

section three hundred sixty-nine-ii of this article if such program is

established and operating.

(2) With respect to a person described in subparagraph one of this

paragraph who is enrolled in a standard health plan, medical assistance

coverage shall mean:

(i) payment of required premiums and other cost-sharing obligations

under the standard health plan that exceed the person's co-payment

obligation under subdivision six of section three hundred sixty-seven-a

of this title; and

(ii) payment for services and supplies described in subdivision one or

two of section three hundred sixty-five-a of this title, as applicable,

but only to the extent that such services and supplies are not covered

by the standard health plan.

(3) Nothing in this subdivision shall prevent a person described in

subparagraph one of this paragraph from qualifying for or receiving

medical assistance while his or her enrollment in a standard health plan

is pending, in accordance with applicable provisions of this title.

(4) (a) Applicants and recipients who are age sixty-five or older, who

are otherwise eligible for medical assistance under this section, but

for their immigration status, are eligible for medical assistance

according to the following:

* (b) individuals eligible for medical assistance pursuant to

subparagraph (a) of this paragraph shall participate in and receive

covered benefits available through a managed care provider under section

three hundred sixty-four-j of this article that is certified pursuant to

section forty-four hundred three of the public health law; provided,

however, to the extent that any covered benefits available through such

managed care providers as of January first, two thousand twenty-three

are transitioned to fee-for-service coverage, then such individuals

shall continue to be entitled to these benefits in the fee-for-service

program, rather than through a managed care provider.

* NB Effective until January 1, 2027

* (b) individuals eligible for medical assistance pursuant to clause

(a) of this subparagraph shall receive the equivalent of the covered

benefits available through a managed care provider under section three

hundred sixty-four-j of this article that is certified pursuant to

section forty-four hundred three of the public health law through the

fee-for-service program, including any covered benefits available

through such managed care providers as of January first, two thousand

twenty-three that were subsequently transitioned to fee-for-service

coverage.

* NB Effective January 1, 2027

1-a. Notwithstanding any other provision of law, in the event that a

person who is an incarcerated individual of a state or local

correctional facility, as defined in section two of the correction law,

or an eligible juvenile inmate of a public institution, as defined in

subsection (nn) of section nineteen hundred two of the social security

act, was in receipt of medical assistance pursuant to this title

immediately prior to being admitted to such facility or public

institution, or for juveniles determined eligible for such medical

assistance while an inmate of a public institution, such person shall

remain eligible for medical assistance while an incarcerated individual,

except that no medical assistance shall be furnished pursuant to this

title for any care, services, or supplies provided during such time as

the person is an incarcerated individual; provided, however, that

nothing herein shall be deemed as preventing the provision of medical

assistance for inpatient hospital services furnished to an incarcerated

individual at a hospital outside of the premises of such correctional

facility or public institution, or pursuant to other federal authority

authorizing the provision of medical assistance to an incarcerated

individual of a state or local correctional facility during the thirty

days prior to release, to the extent that federal financial

participation is available for the costs of such services. Upon release

from such facility or public institution, such person shall continue to

be eligible for receipt of medical assistance furnished pursuant to this

title until such time as the person is determined to no longer be

eligible for receipt of such assistance. To the extent permitted by

federal law, the time during which such person is an incarcerated

individual shall not be included in any calculation of when the person

must recertify his or her eligibility for medical assistance in

accordance with this article. The state may seek federal authority to

provide medical assistance for transitional services including but not

limited to medical, prescription, and care coordination services for

high needs incarcerated individuals in state and local correctional

facilities during the thirty days prior to release.

1-b. Notwithstanding any other provision of law, in the event that a

person who is an inpatient in an institution for mental diseases, as

defined by federal law and regulations, and who was in receipt of

medical assistance pursuant to this title immediately prior to being

admitted to such facility, or who was directly admitted to such facility

after being an inpatient in another institution for mental diseases and

who was in receipt of medical assistance prior to admission to such

transferring institution, such person shall remain eligible for medical

assistance while an inpatient in such facility; provided, however, that

no medical assistance shall be furnished pursuant to this title for any

care, services, or supplies provided during the time that such person is

an inpatient, except to the extent that federal financial participation

is available for the costs of such care, services, or supplies. Upon

release from such facility, such person shall continue to be eligible

for receipt of medical assistance furnished pursuant to this title until

such time as the person is determined to no longer be eligible for

receipt of such assistance. To the extent permitted by federal law, the

time during which such person is an inpatient in an institution for

mental diseases shall not be included in any calculation of when the

person must recertify his or her eligibility for medical assistance in

accordance with this article.

2. (a) The following income and resources shall be exempt and shall

not be taken into consideration in determining a person's eligibility

for medical care, services and supplies available under this title:

(1) (i) for applications for medical assistance filed on or before

December thirty-first, two thousand five, a homestead which is essential

and appropriate to the needs of the household;

(ii) for applications for medical assistance filed on or after January

first, two thousand six, a homestead which is essential and appropriate

to the needs of the household; provided, however, that in determining

eligibility of an individual for medical assistance for nursing facility

services and other long term care services, the individual shall not be

eligible for such assistance if the individual's equity interest in the

homestead exceeds seven hundred fifty thousand dollars; provided

further, that the dollar amount specified in this clause shall be

increased, beginning with the year two thousand eleven, from year to

year, in an amount to be determined by the secretary of the federal

department of health and human services, based on the percentage

increase in the consumer price index for all urban consumers, rounded to

the nearest one thousand dollars. If such secretary does not determine

such an amount, the department of health shall increase such dollar

amount based on such increase in the consumer price index. Nothing in

this clause shall be construed as preventing an individual from using a

reverse mortgage or home equity loan to reduce the individual's total

equity interest in the homestead. The home equity limitation established

by this clause shall be waived in the case of a demonstrated hardship,

as determined pursuant to criteria established by such secretary. The

home equity limitation shall not apply if one or more of the following

persons is lawfully residing in the individual's homestead: (A) the

spouse of the individual; or (B) the individual's child who is under the

age of twenty-one, or is blind or permanently and totally disabled, as

defined in section 1614 of the federal social security act.

(2) essential personal property;

(3) a burial fund, to the extent allowed as an exempt resource under

the cash assistance program to which the applicant is most closely

related;

(4) savings in amounts equal to one hundred fifty percent of the

income amount permitted under subparagraph seven of this paragraph,

provided, however, that the amounts for one and two person households

shall not be less than the amounts permitted to be retained by

households of the same size in order to qualify for benefits under the

federal supplemental security income program;

(5) (i) such income as is disregarded or exempt under the cash

assistance program to which the applicant is most closely related for

purposes of this subparagraph, cash assistance program means either the

aid to dependent children program as it existed on the sixteenth day of

July, nineteen hundred ninety-six, or the supplemental security income

program; and

(ii) such income of a disabled person (as such term is defined in

section 1614(a)(3) of the federal social security act (42 U.S.C. section

1382c(a)(3)) or in accordance with any other rules or regulations

established by the social security administration), that is deposited in

trusts as defined in clause (iii) of subparagraph two of paragraph (b)

of this subdivision in the same calendar month within which said income

is received;

(6) health insurance premiums;

(7) income based on the number of family members in the medical

assistance household, as defined in regulations by the commissioner

consistent with federal regulations under title XIX of the federal

social security act that does not exceed one hundred thirty-eight

percent of the federal poverty line for the applicable family size,

which shall be calculated in accordance with guidance issued by the

United States secretary for health and human services and with other

applicable provisions of this section;

(8) No other income or resources, including federal old-age, survivors

and disability insurance, state disability insurance or other payroll

deductions, whether mandatory or optional, shall be exempt and all other

income and resources shall be taken into consideration and required to

be applied toward the payment or partial payment of the cost of medical

care and services available under this title, to the extent permitted by

federal law.

(9) Subject to subparagraph eight, the department, upon the

application of a local social services district, after passage of a

resolution by the local legislative body authorizing such application,

may adjust the income exemption based upon the variations between cost

of shelter in urban areas and rural areas in accordance with standards

prescribed by the United States secretary of health, education and

welfare.

(10) (i) A person who is receiving or is eligible to receive federal

supplemental security income payments and/or additional state payments

is entitled to a personal needs allowance as follows:

(A) for the personal expenses of a resident of a residential health

care facility, as defined by section twenty-eight hundred one of the

public health law, the amount of fifty-five dollars per month;

(B) for the personal expenses of a resident of an intermediate care

facility operated or licensed by the office for people with

developmental disabilities or a patient of a hospital operated by the

office of mental health, as defined by subdivision ten of section 1.03

of the mental hygiene law, the amount of thirty-five dollars per month.

(ii) A person who neither receives nor is eligible to receive federal

supplemental security income payments and/or additional state payments

is entitled to a personal needs allowance as follows:

(A) for the personal expenses of a resident of a residential health

care facility, as defined by section twenty-eight hundred one of the

public health law, the amount of fifty dollars per month;

(B) for the personal expenses of a resident of an intermediate care

facility operated or licensed by the office for people with

developmental disabilities or a patient of a hospital operated by the

office of mental health, as defined by subdivision ten of section 1.03

of the mental hygiene law, the amount of thirty-five dollars per month.

(iii) Notwithstanding the provisions of clauses (i) and (ii) of this

subparagraph, the personal needs allowance for a person who is a veteran

having neither a spouse nor a child, or a surviving spouse of a veteran

having no child, who receives a reduced pension from the federal

veterans administration, and who is a resident of a nursing facility, as

defined in section 1919 of the federal social security act, shall be

equal to such reduced monthly pension but shall not exceed ninety

dollars per month.

(11) subject to the availability of federal financial participation,

any amount, including earnings thereon, in a qualified NY ABLE account

as established pursuant to article eighty-four of the mental hygiene

law, any contributions to such NY ABLE account, and any distribution for

qualified disability expenses from such account; provided however, that

such exemption shall be consistent with section 529A of the Internal

Revenue Code of 1986, as amended.

* (b) (1) In establishing standards for determining eligibility for

and amount of such assistance, the department shall take into account

only such income and resources, in accordance with federal requirements,

as are available to the applicant or recipient and as would not be

required to be disregarded or set aside for future needs, and there

shall be a reasonable evaluation of any such income or resources. There

shall not be taken into consideration the financial responsibility of

any individual for any applicant or recipient of assistance under this

title unless such applicant or recipient is such individual's spouse or

such individual's child who is under twenty-one years of age. In

determining the eligibility of a child who is categorically eligible as

blind or disabled, as determined under regulations prescribed by the

social security act for medical assistance, the income and resources of

parents or spouses of parents are not considered available to that child

if she/he does not regularly share the common household even if the

child returns to the common household for periodic visits. In the

application of standards of eligibility with respect to income, costs

incurred for medical care, whether in the form of insurance premiums or

otherwise, shall be taken into account. Any person who is eligible for,

or reasonably appears to meet the criteria of eligibility for, benefits

under title XVIII of the federal social security act shall be required

to apply for and fully utilize such benefits in accordance with this

chapter.

(2) (a) Notwithstanding any inconsistent provision of this chapter or

any other law to the contrary, upon the request of the social services

district the commissioner shall, subject to the approval of the director

of the budget and the procurement of the applicable federal waiver,

authorize demonstration projects in up to five social services

districts, or portions thereof, for the purpose of testing the

feasibility of utilizing a special medical assistance income eligibility

standard for certain persons in general hospitals on alternate care

status who have been determined medically eligible for care in the

community, in order to ease the financial burden of the legally

responsible relatives. For any person sixty-five years of age or older

residing in such social services districts, who is in a general hospital

on alternate care status awaiting placement in a nursing home or

intermediate care facility, as to whom it has been determined by the

social services district that such person can be sustained in the

community with in-home services at a cost not exceeding seventy-five

percent of the average cost of care in a nursing home or intermediate

care facility, and who meets such other criteria as the commissioner may

establish, the social services district may, where it is beneficial to

the applicant and legally responsible relatives, make a separate

eligibility determination for such person, by adding the income of such

person and support considered available from the legally responsible

relative determined in accordance with regulations of the department,

and comparing this sum to the medical assistance income exemption level

for a household of one.

(b) In addition to the authorization provided for in clause (a), the

commissioner shall, upon request of a social services district,

authorize one social services district, or a portion thereof, to use the

special medical assistance income eligibility standard established in

clause (a) for persons: who are sixty-five years of age or older in

general hospitals or in the community and who are medically eligible for

placement in a nursing home or intermediate care facility; and who it

has been determined by the social services district can be sustained in

the community with in-home services at a cost not to exceed the average

cost of care in a nursing home or intermediate care facility.

(c) No provision of this subparagraph shall be construed so as to deny

any benefit to a person otherwise eligible for medical assistance in

accordance with this chapter.

(d) Resource eligibility shall be established in accordance with the

requirements of paragraph (a) of this subdivision.

(e) This subparagraph shall be effective if, and as long as, federal

financial participation is available.

* NB Expired March 31, 1988

* NB There are 2 sb 2 ¶(b)'s

* (b) (1) In establishing standards for determining eligibility for

and amount of such assistance, the department shall take into account

only such income and resources, in accordance with federal requirements,

as are available to the applicant or recipient and as would not be

required to be disregarded or set aside for future needs, and there

shall be a reasonable evaluation of any such income or resources. The

department shall not consider the availability of an option for an

accelerated payment of death benefits or special surrender value

pursuant to paragraph one of subsection (a) of section one thousand one

hundred thirteen of the insurance law, or an option to enter into a

viatical settlement pursuant to the provisions of article seventy-eight

of the insurance law, as an available resource in determining

eligibility for an amount of such assistance, provided, however, that

the payment of such benefits shall be considered in determining

eligibility for and amount of such assistance. There shall not be taken

into consideration the financial responsibility of any individual for

any applicant or recipient of assistance under this title unless such

applicant or recipient is such individual's spouse or such individual's

child who is under twenty-one years of age. In determining the

eligibility of a child who is categorically eligible as blind or

disabled, as determined under regulations prescribed by the social

security act for medical assistance, the income and resources of parents

or spouses of parents are not considered available to that child if

she/he does not regularly share the common household even if the child

returns to the common household for periodic visits. In the application

of standards of eligibility with respect to income, costs incurred for

medical care, whether in the form of insurance premiums or otherwise,

shall be taken into account. Any person who is eligible for, or

reasonably appears to meet the criteria of eligibility for, benefits

under title XVIII of the federal social security act shall be required

to apply for and fully utilize such benefits in accordance with this

chapter.

(2) In evaluating the income and resources available to an applicant

for or recipient of medical assistance, for purposes of determining

eligibility for and the amount of such assistance, the department must

consider assets held in or paid from trusts created by such applicant or

recipient, as determined pursuant to the regulations of the department,

in accordance with the provisions of this subparagraph.

(i) In the case of a revocable trust created by an applicant or

recipient, as determined pursuant to regulations of the department: the

trust corpus must be considered to be an available resource; payments

made from the trust to or for the benefit of such applicant or recipient

must be considered to be available income; and any other payments from

the trust must be considered to be assets disposed of by such applicant

or recipient for purposes of paragraph (d) of subdivision five of this

section.

(ii) In the case of an irrevocable trust created by an applicant or

recipient, as determined pursuant to regulations of the department: any

portion of the trust corpus, and of the income generated by the trust

corpus, from which no payment can under any circumstances be made to

such applicant or recipient must be considered, as of the date of

establishment of the trust, or, if later, the date on which payment to

the applicant or recipient is foreclosed, to be assets disposed of by

such applicant or recipient for purposes of paragraph (d) of subdivision

five of this section; any portion of the trust corpus, and of the income

generated by the trust corpus, from which payment could be made to or

for the benefit of such applicant or recipient must be considered to be

an available resource; payments made from the trust to or for the

benefit of such applicant or recipient must be considered to be

available income; and any other payments from the trust must be

considered to be assets disposed of by such applicant or recipient for

purposes of paragraph (d) of subdivision five of this section.

(iii) Notwithstanding the provisions of clauses (i) and (ii) of this

subparagraph, in the case of an applicant or recipient who is disabled,

as such term is defined in section 1614(a)(3) of the federal social

security act, the department must not consider as available income or

resources the corpus or income of the following trusts which comply with

the provisions of the regulations authorized by clause (iv) of this

subparagraph: (A) a trust containing the assets of such a disabled

individual which was established for the benefit of the disabled

individual while such individual was under sixty-five years of age by

the individual, a parent, grandparent, legal guardian, or court of

competent jurisdiction, if upon the death of such individual the state

will receive all amounts remaining in the trust up to the total value of

all medical assistance paid on behalf of such individual; (B) and a

trust containing the assets of such a disabled individual established

and managed by a non-profit association which maintains separate

accounts for the benefit of disabled individuals, but, for purposes of

investment and management of trust funds, pools the accounts, provided

that accounts in the trust fund are established solely for the benefit

of individuals who are disabled as such term is defined in section

1614(a)(3) of the federal social security act by such disabled

individual, a parent, grandparent, legal guardian, or court of competent

jurisdiction, and to the extent that amounts remaining in the

individual's account are not retained by the trust upon the death of the

individual, the state will receive all such remaining amounts up to the

total value of all medical assistance paid on behalf of such individual.

Notwithstanding any law to the contrary, a not-for-profit corporation

may, in furtherance of and as an adjunct to its corporate purposes, act

as trustee of a trust for persons with disabilities established pursuant

to this subclause, provided that a trust company, as defined in

subdivision seven of section one hundred-c of the banking law, acts as

co-trustee.

(iv) The department shall promulgate such regulations as may be

necessary to carry out the provisions of this subparagraph. Such

regulations shall include provisions for: assuring the fulfillment of

fiduciary obligations of the trustee with respect to the remainder

interest of the department or state; monitoring pooled trusts; applying

this subdivision to legal instruments and other devices similar to

trusts, in accordance with applicable federal rules and regulations; and

establishing procedures under which the application of this subdivision

will be waived with respect to an applicant or recipient who

demonstrates that such application would work an undue hardship on him

or her, in accordance with standards specified by the secretary of the

federal department of health and human services. Such regulations may

require: notification of the department of the creation or funding of

such a trust for the benefit of an applicant for or recipient of medical

assistance; notification of the department of the death of a beneficiary

of such a trust who is a current or former recipient of medical

assistance; in the case of a trust, the corpus of which exceeds one

hundred thousand dollars, notification of the department of transactions

tending to substantially deplete the trust corpus; notification of the

department of any transactions involving transfers from the trust corpus

for less than fair market value; the bonding of the trustee when the

assets of such a trust equal or exceed one million dollars, unless a

court of competent jurisdiction waives such requirement; and the bonding

of the trustee when the assets of such a trust are less than one million

dollars, upon order of a court of competent jurisdiction. The

department, together with the department of financial services, shall

promulgate regulations governing the establishment, management and

monitoring of trusts established pursuant to subclause (B) of clause

(iii) of this subparagraph in which a not-for-profit corporation and a

trust company serve as co-trustees.

(v) Notwithstanding any acts, omissions or failures to act of a

trustee of a trust which the department or a local social services

official has determined complies with the provisions of clause (iii) and

the regulations authorized by clause (iv) of this subparagraph, the

department must not consider the corpus or income of any such trust as

available income or resources of the applicant or recipient who is

disabled, as such term is defined in section 1614(a)(3) of the federal

social security act. The department's remedy for redress of any acts,

omissions or failures to act by such a trustee which acts, omissions or

failures are considered by the department to be inconsistent with the

terms of the trust, contrary to applicable laws and regulations of the

department, or contrary to the fiduciary obligations of the trustee

shall be the commencement of an action or proceeding under subdivision

one of section sixty-three of the executive law to safeguard or enforce

the state's remainder interest in the trust, or such other action or

proceeding as may be lawful and appropriate as to assure compliance by

the trustee or to safeguard and enforce the state's remainder interest

in the trust.

(vi) The department shall provide written notice to an applicant for

or recipient of medical assistance who is or reasonably appears to be

eligible for medical assistance except for having income exceeding

applicable income levels. The notice shall inform the applicant or

recipient, in plain language, that in certain circumstances the medical

assistance program does not count the income of disabled applicants and

recipients if it is placed in a trust described in clause (iii) of this

subparagraph. The notice shall be included with the eligibility notice

provided to such applicants and recipients and shall reference where

additional information may be found on the department's website. This

clause shall not be construed to change any criterion for eligibility

for medical assistance.

* NB There are 2 sb 2 ¶(b)'s

(3) (a) Social services officials shall authorize medical assistance

for persons who would be eligible for such assistance except that their

incomes exceed the applicable medical assistance income eligibility

standard, which is determined according to paragraph (a) of subdivision

two of this section, to become eligible for medical assistance by paying

to their social services districts the amount by which their incomes

exceed such income eligibility levels.

(b) Social services districts shall safeguard, by deposit in special

accounts, any amounts paid to them by such recipients of medical

assistance benefits. The amount of any medical assistance payments made

to providers of medical assistance on behalf of such recipients, shall

be charged against the amount in recipients' accounts. Districts shall,

in accordance with their approved plans, periodically refund the

amounts, if any, by which the amounts in recipients' accounts exceed the

amounts of any medical assistance payments made on their behalf.

Districts shall report to the department amounts in recipients' accounts

that are equal to the amount of medical assistance payments made on

recipients' behalf.

(c) Eligibility under this subparagraph shall be authorized only in

accordance with plans submitted by social services districts and

approved by the commissioner. Plans must be submitted by social services

districts to the commissioner no later than February first, nineteen

hundred ninety-six. The commissioner shall only approve plans that

include a detailed description of how the district will administer the

program, enroll recipients, safeguard monies in recipients' accounts,

reconcile payments made to providers of medical assistance services with

account balances and refund the amounts by which recipients' account

funds exceed the amounts paid to providers on their behalf.

(d) By January first, nineteen hundred ninety-five, the department

shall submit to the governor and the legislature a report evaluating the

demonstration programs effect on enrollees' access to medical assistance

care and services and any other subjects the commissioner deems

relevant.

(e) Notwithstanding any other provision of law, administrative

expenditures incurred by local social services districts in relation to

this section shall be reimbursable as provided in subdivision one of

section three hundred sixty-eight-a of this article.

3. (a) Medical assistance shall be furnished to applicants in cases

where, although such applicant has a responsible relative with

sufficient income and resources to provide medical assistance as

determined by the regulations of the department, the income and

resources of the responsible relative are not available to such

applicant because of the absence of such relative or the refusal or

failure of such relative to provide the necessary care and assistance.

In such cases, however, the furnishing of such assistance shall create

an implied contract with such relative, and the cost thereof may be

recovered from such relative in accordance with title six of article

three and other applicable provisions of law.

(b) (i) When a legally responsible relative agrees or is ordered by a

court or administrative tribunal of competent jurisdiction to provide

health insurance or other medical care coverage for his or her

dependents or other persons, and such dependents or other persons are

applicants for, recipients of or otherwise entitled to receive medical

assistance pursuant to this title, the department and social services

officials shall be subrogated to any rights that the responsible

relative may have to obtain reimbursement from a third party for the

costs of medical care for such dependents or persons.

(ii) Upon receipt of an application, or upon a determination of

eligibility, for assistance pursuant to this title, the department and

social services officials shall be deemed to have furnished assistance

to any such dependent or person entitled to receive medical assistance

pursuant to this title and shall be subrogated to any rights such person

may have to third party reimbursement as provided in paragraph (b) of

subdivision two of section three hundred sixty-seven-a of this title.

(iii) For purposes of determining whether a person is legally

responsible for a person receiving assistance under this title, the

following shall be dispositive: a copy of a support order issued

pursuant to section four hundred sixteen or five hundred forty-five of

the family court act or section two hundred thirty-six or two hundred

forty of the domestic relations law; an order described in paragraph (h)

of subdivision four of this section; an order of a court or

administrative tribunal of competent jurisdiction pursuant to the

provisions of this subdivision; or any other order of a court or

administrative tribunal of competent jurisdiction subject to the

provisions of this subdivision. If a notice of subrogation as described

in paragraph (b) of subdivision two of section three hundred

sixty-seven-a of this title is accompanied by dispositive documentation

that a person is legally responsible for a person receiving assistance

under this title, any third party liable for reimbursement for the costs

of medical care shall accord the department or any social services

official the rights of and benefits available to the responsible

relative that pertain to the provision of medical care to any persons

entitled to medical assistance pursuant to this title for whom the

relative is legally responsible.

(c) The provisions of this subdivision shall not be construed to

diminish the authority of a social services official to bring a

proceeding pursuant to the provisions of this chapter or other

provisions of law (1) to compel any responsible relative to contribute

to the support of any person receiving or liable to become in need of

medical assistance, or (2) to recover from a recipient or a responsible

relative the cost of medical assistance not correctly paid.

4. Special eligibility provisions.

(a) Transitional medical assistance.

(1) Notwithstanding any other provision of law, each family which was

eligible for medical assistance pursuant to subparagraph four of

paragraph (b) of subdivision one of this section in at least one of the

six months immediately preceding the month in which such family became

ineligible for such assistance because of income from the employment of

the caretaker relative shall, while such family includes a dependent

child, remain eligible for medical assistance for twelve calendar months

immediately following the month in which such family would otherwise be

determined to be ineligible for medical assistance pursuant to the

provisions of this title and the regulations of the department governing

income and resource limitations relating to eligibility determinations

for families described in subparagraph four of paragraph (b) of

subdivision one of this section.

(2) (i) Upon giving notice of termination of medical assistance

provided pursuant to subparagraph four of paragraph (b) of subdivision

one of this section, the department shall notify each such family of its

rights to extended benefits under subparagraph one of this paragraph and

describe the conditions under which such extension may be terminated.

(ii) The department shall promulgate regulations implementing the

requirements of this subparagraph and subparagraph one of this paragraph

relating to the conditions under which extended coverage hereunder may

be terminated, the scope of coverage, and the conditions under which

coverage may be extended pending a redetermination of eligibility. Such

regulations shall, at a minimum, provide for: termination of such

coverage at the close of the first month in which the family ceases to

include a dependent child; notice of termination prior to the effective

date of any terminations; coverage under employee health plans and

health maintenance organizations; and disqualification of persons for

extended coverage benefits under this paragraph for fraud.

(3) Notwithstanding any inconsistent provision of law, each family

which was eligible for medical assistance pursuant to subparagraph four

of paragraph (b) of subdivision one of this section in at least three of

the six months immediately preceding the month in which such family

became ineligible for such assistance as a result, wholly or partly, of

the collection or increased collection of spousal support pursuant to

part D of title IV of the federal social security act, shall, for

purposes of medical assistance eligibility, be considered to be eligible

for medical assistance pursuant to subparagraph four of paragraph (b) of

subdivision one of this section for an additional four calendar months

beginning with the month ineligibility for such assistance begins.

(b) Pregnant women and children.

(1) A pregnant woman eligible for medical assistance under

subparagraph two or four of paragraph (b) of subdivision one of this

section on any day of her pregnancy will continue to be eligible for

such care and services for a period of one year beginning on the last

day of pregnancy, without regard to any change in the income of the

family that includes the pregnant woman, even if such change otherwise

would have rendered her ineligible for medical assistance.

(2) A child born to a woman eligible for and receiving medical

assistance on the date of the child's birth shall be deemed to have

applied for medical assistance and to have been found eligible for such

assistance on the date of such birth and to remain eligible for such

assistance for a period of one year, so long as the child is a member of

the woman's household and the woman remains eligible for such assistance

or would remain eligible for such assistance if she were pregnant.

(3) A child under the age of nineteen who is determined eligible for

medical assistance under the provisions of this section, shall,

consistent with applicable federal requirements, remain eligible for

such assistance until the earlier of:

(A) the last day of the month which is twelve months following the

determination or renewal of eligibility for such assistance; or

(B) the last day of the month in which the child reaches the age of

nineteen.

(4) An infant eligible under subparagraph two or four of paragraph (b)

of subdivision one of this section who is receiving medically necessary

in-patient services for which medical assistance is provided on the date

the child attains one year of age, and who, but for attaining such age,

would remain eligible for medical assistance under such subparagraph,

shall continue to remain eligible until the end of the stay for which

in-patient services are being furnished.

(5) A child eligible under subparagraph three of paragraph (b) of

subdivision one of this section who is receiving medically necessary

in-patient services for which medical assistance is provided on the date

the child attains nineteen years of age, and who, but for attaining such

age, would remain eligible for medical assistance under this paragraph,

shall continue to remain eligible until the end of the stay for which

in-patient services are being furnished.

(6) A woman who was pregnant while in receipt of medical assistance

who subsequently loses her eligibility for medical assistance shall have

her eligibility for medical assistance continued for a period of

twenty-four months from the end of the month in which the sixtieth day

following the end of her pregnancy occurs, but only for Federal Title X

services which are eligible for reimbursement by the federal government

at a rate of ninety percent; provided, however, that such ninety percent

limitation shall not apply to those services identified by the

commissioner as services, including treatment for sexually transmitted

diseases, generally performed as part of or as a follow-up to a service

eligible for such ninety percent reimbursement; and provided further,

however, that nothing in this paragraph shall be deemed to affect

payment for such Title X services if federal financial participation is

not available for such care, services and supplies.

(c) Continuous coverage for adults. Notwithstanding any other

provision of law, a person whose eligibility for medical assistance is

based on the modified adjusted gross income of the person or the

person's household, and who loses eligibility for such assistance for a

reason other than citizenship status, lack of state residence, or

failure to provide a valid social security number, before the end of a

twelve month period beginning on the effective date of the person's

initial eligibility for such assistance, or before the end of a twelve

month period beginning on the date of any subsequent determination of

eligibility based on modified adjusted gross income, shall have his or

her eligibility for such assistance continued until the end of such

twelve month period, provided that federal financial participation in

the costs of such assistance is available.

(d) Breast and cervical cancer treatment.

(1) Persons who are not eligible for medical assistance under the

terms of section 1902(a)(10)(A)(i) of the federal social security act

are eligible for medical assistance coverage during the treatment of

breast or cervical cancer, subject to the provisions of this paragraph.

(2) (i) Medical assistance is available under this paragraph to

persons who are under sixty-five years of age, have been screened for

breast and/or cervical cancer under the Centers for Disease Control and

Prevention breast and cervical cancer early detection program and need

treatment for breast or cervical cancer, and are not otherwise covered

under creditable coverage as defined in the federal public health

service act; provided however that medical assistance shall be furnished

pursuant to this clause only to the extent permitted under federal law,

if, for so long as, and to the extent that federal financial

participation is available therefor.

(ii) Medical assistance is available under this paragraph to persons

who meet the requirements of clause (i) of this subparagraph but for

their age and/or gender, who have been screened for breast and/or

cervical cancer under the program described in title one-A of article

twenty-four of the public health law and need treatment for breast or

cervical cancer, and are not otherwise covered under creditable coverage

as defined in the federal public health service act; provided however

that medical assistance shall be furnished pursuant to this clause only

if and for so long as the provisions of clause (i) of this subparagraph

are in effect.

(3) Medical assistance provided to a person under this paragraph shall

be limited to the period in which such person requires treatment for

breast or cervical cancer.

(4) (i) The commissioner of health shall promulgate such regulations

as may be necessary to carry out the provisions of this paragraph. Such

regulations shall include, but not be limited to: eligibility

requirements; a description of the medical services which are covered;

and a process for providing presumptive eligibility when a qualified

entity, as defined by the commissioner, determines on the basis of

preliminary information that a person meets the requirements for

eligibility under this paragraph.

(ii) For purposes of determining eligibility for medical assistance

under this paragraph, resources available to such individual shall not

be considered nor required to be applied toward the payment or part

payment of the cost of medical care, services and supplies available

under this paragraph.

(iii) An individual shall be eligible for presumptive eligibility for

medical assistance under this paragraph in accordance with subdivision

four of section three hundred sixty-four-i of this title.

(5) The commissioner of health shall, consistent with this title, make

any necessary amendments to the state plan for medical assistance

submitted pursuant to section three hundred sixty-three-a of this title,

in order to ensure federal financial participation in expenditures under

this paragraph. Notwithstanding any provision of law to the contrary,

the provisions of clause (i) of subparagraph two of this paragraph shall

be effective only if and for so long as federal financial participation

is available in the costs of medical assistance furnished thereunder.

(e) Colon and prostate cancer treatment.

(1) Notwithstanding any other provision of law to the contrary, a

person who has been screened or referred for screening for colon or

prostate cancer by the cancer services screening program, as

administered by the department of health, and has been diagnosed with

colon or prostate cancer is eligible for medical assistance for the

duration of his or her treatment for such cancer.

(2) Persons eligible for medical assistance under this paragraph shall

have an income of two hundred fifty percent or less of the comparable

federal income official poverty line as defined and annually revised by

the federal office of management and budget.

(3) An individual shall be eligible for presumptive eligibility for

medical assistance under this paragraph in accordance with subdivision

four of section three hundred sixty-four-i of this title.

(4) Medical assistance is available under this paragraph to persons

who are under sixty-five years of age, and are not otherwise covered

under creditable coverage as defined in the federal Public Health

Service Act.

5. (a) In determining the initial or continuing eligibility of any

person for assistance under this title, there shall be included in the

amount of resources considered available to such person the

uncompensated value of any resource transferred prior to the date of

application for medical assistance as specified in paragraphs (b), (c),

(d) and (e) of this subdivision, and such person shall be ineligible for

such assistance for such period or periods as specified in this

subdivision.

(b) For transfers made on or after April tenth, nineteen hundred

eighty-two and prior to October first, nineteen hundred eighty-nine:

(1) a nonexempt resource shall mean any resource which if retained by

such person would not be exempt from consideration under the provisions

of subdivision two of this section;

(2) any transfer of a nonexempt resource made within twenty-four

months prior to the date of a person's application for medical

assistance shall be presumed to have been made for the purpose of

qualifying for such assistance; however, if such person furnishes

evidence to establish that the transfer was exclusively for some other

purpose, the uncompensated value shall not be considered available to

such person in determining his or her initial or continued eligibility

for medical assistance;

(3) the uncompensated value of any such resource shall be the fair

market value of such resource at the time of transfer, minus the amount

of the compensation received by the person in exchange for the resource;

(4) any person determined to have excess resources of twelve thousand

dollars or less because of the application of this paragraph shall

remain ineligible for assistance under this title for a period of

twenty-four months from the date of the transfer, or until such person

can demonstrate that he or she has incurred medical expenses after the

date of transfer in the amount of such excess above otherwise allowable

resources, whichever period is shorter;

(5) any person determined to have excess resources of more than twelve

thousand dollars because of the application of this paragraph shall

remain ineligible for assistance under this title for a period which

exceeds twenty-four months, which period shall be determined by adding

an additional month of ineligibility for each two thousand dollars in

excess of twelve thousand dollars, or until such person can demonstrate

that he or she has incurred medical expenses after the date of transfer

in the amount of such excess above otherwise allowable resources,

whichever period is shorter.

(c) For transfers made on or after October first, nineteen hundred

eighty-nine:

(1) (i) "institutionalized person" means any person who is an

in-patient in a nursing facility, or who is an in-patient in a medical

facility and is receiving a level of care provided in a nursing

facility, or who is receiving care, services or supplies pursuant to a

waiver pursuant to subsection (c) of section nineteen hundred fifteen of

the federal social security act.

(ii) "resources" includes any resources which would not be considered

exempt from consideration under the provisions of subdivision two of

this section, without regard to the exemption provided for in

subparagraph one of paragraph (a) of such subdivision.

(iii) "nursing facility" means a nursing home as defined by section

twenty-eight hundred one of the public health law.

(iv) "nursing facility services" means nursing care and health related

services provided in a nursing facility, a level of care provided in a

hospital which is equivalent to the care which is provided in a nursing

facility and care, services or supplies provided pursuant to a waiver

pursuant to subsection (c) of section nineteen hundred fifteen of the

federal social security act.

(2) the uncompensated value of a resource shall be the fair market

value of such resource at the time of transfer, minus the amount of the

compensation received in exchange for the resource.

(3) any transfer of a resource by a person or such person's spouse for

less than fair market value made within or after the thirty months

immediately preceding the date the person becomes an institutionalized

person or the date of application for medical assistance while an

institutionalized person, if later, shall render the person ineligible

for nursing facility services for a period specified in subparagraph

four of this paragraph; however, an institutionalized person shall not

be ineligible for nursing facility services solely by reason of any such

transfer to the extent that:

(i) the resource transferred was a home and title to the home was

transferred to: (A) the spouse of such person; or (B) a child of such

person who is under the age of twenty-one years or certified blind or

certified permanently and totally disabled, as defined by section two

hundred eight of this title; or (C) a sibling of such person who has an

equity interest in such home and who resided in such home for a period

of at least one year immediately before the date the person became an

institutionalized person; or (D) a son or daughter of such person who

was residing in such home for a period of at least two years immediately

before the date such person became an institutionalized person, and who

provided care to such person which permitted such person to reside at

home rather than in an institution or facility; or

(ii) the resource was transferred to or for the sole benefit of such

person's spouse, or from such person's spouse to or for the sole benefit

of such person, or to his or her child who is certified blind or

certified permanently and totally disabled; or

(iii) a satisfactory showing is made that: (A) the person or such

person's spouse intended to dispose of the resource either at fair

market value, or for other valuable consideration, or (B) the resource

was transferred exclusively for a purpose other than to qualify for

medical assistance; or

(iv) denial of eligibility would work an undue hardship, as defined by

the commissioner which definition shall include the inability of the

institutionalized person or such person's spouse to retrieve the

resource or to obtain fair market value therefor despite his or her best

efforts.

(4) Any transfer made by a person or the person's spouse under

subparagraph three of this paragraph shall cause the person to be

ineligible for nursing facility services, for services at a level of

care equivalent to that of nursing facility services for the lesser of

(i) a period of thirty months from the date of transfer, or (ii) a

period equal to the total uncompensated value of the resources so

transferred, divided by the average cost of nursing facility services to

a private patient for a given period of time at the time of application

as determined by the commissioner. For purposes of this subparagraph the

average cost of nursing facility services to a private patient for a

given period of time at the time of application shall be presumed to be

one hundred twenty percent of the average medical assistance rate of

payment as of the first day of January of each year for nursing

facilities within the region as established pursuant to paragraph (b) of

subdivision sixteen of section twenty-eight hundred seven-c of the

public health law wherein the applicant resides.

(d) For transfers made after August tenth, nineteen hundred

ninety-three:

(1) (i) "assets" means all income and resources of an individual and

of the individual's spouse, including income or resources to which the

individual or the individual's spouse is entitled but which are not

received because of action by: the individual or the individual's

spouse; a person with legal authority to act in place of or on behalf of

the individual or the individual's spouse; a person acting at the

direction or upon the request of the individual or the individual's

spouse; or by a court or administrative body with legal authority to act

in place of or on behalf of the individual or the individual's spouse or

at the direction or upon the request of the individual or the

individual's spouse.

(ii) "blind" has the same meaning given to such term in section

1614(a)(2) of the federal social social security act.

(iii) "disabled" has the same meaning given to such term in section

1614(a)(3) of the federal social security act.

(iv) "income" has the same meaning given to such term in section 1612

of the federal social security act.

(v) "resources" has the same meaning given to such term in section

1613 of the federal social security act, without regard, in the case of

an institutionalized individual, to the exclusion provided for in

subsection (a)(1) of such section.

(vi) "look-back period" means the thirty-six month period, or, in the

case of payments from a trust or portions of a trust which are treated

as assets disposed of by the individual pursuant to department

regulations, the sixty-month period, immediately preceding the date that

an institutionalized individual is both institutionalized and has

applied for medical assistance.

(vii) "institutionalized individual" means any individual who is an

in-patient in a nursing facility, including an intermediate care

facility for individuals with developmental disabilities, or who is an

in-patient in a medical facility and is receiving a level of care

provided in a nursing facility, or who is receiving care, services or

supplies pursuant to a waiver granted pursuant to subsection (c) of

section 1915 of the federal social security act.

(viii) "intermediate care facility for individuals with developmental

disabilities" means a facility certified under article sixteen of the

mental hygiene law and which has a valid agreement with the department

for providing intermediate care facility services and receiving payment

therefor under title XIX of the federal social security act.

(ix) "nursing facility" means a nursing home as defined by section

twenty-eight hundred one of the public health law and an intermediate

care facility for individuals with developmental disabilities.

(x) "nursing facility services" means nursing care and health related

services provided in a nursing facility; a level of care provided in a

hospital which is equivalent to the care which is provided in a nursing

facility; and care, services or supplies provided pursuant to a waiver

granted pursuant to subsection (c) of section 1915 of the federal social

security act.

(2) The uncompensated value of an asset is the fair market value of

such asset at the time of transfer, minus the amount of the compensation

received in exchange for the asset.

(3) In determining the medical assistance eligibility of an

institutionalized individual, any transfer of an asset by the individual

or the individual's spouse for less than fair market value made within

or after the look-back period shall render the individual ineligible for

nursing facility services for the period of time specified in

subparagraph four of this paragraph. Notwithstanding the provisions of

this subparagraph, an individual shall not be ineligible for services

solely by reason of any such transfer to the extent that:

(i) in the case of an institutionalized individual, the asset

transferred was a home and title to the home as transferred to: (A) the

spouse of the individual; or (B) a child of the individual who is under

the age of twenty-one years or blind or disabled; or (C) a sibling of

the individual who has an equity interest in such home and who resided

in such home for a period of at least one year immediately before the

date the individual became an institutionalized individual; or (D) a

child of the individual who was residing in such home for a period of at

least two years immediately before the date the individual became an

institutionalized individual, and who provided care to the individual

which permitted the individual to reside at home rather than in an

institution or facility; or

(ii) the assets: (A) were transferred to the individual's spouse, or

to another for the sole benefit of the individual's spouse; or (B) were

transferred from the individual's spouse to another for the sole benefit

of the individual's spouse; or (C) were transferred to the individual's

child who is blind or disabled, or to a trust established solely for the

benefit of such child; or (D) were transferred to a trust established

solely for the benefit of an individual under sixty-five years of age

who is disabled; or

(iii) a satisfactory showing is made that: (A) the individual or the

individual's spouse intended to dispose of the assets either at fair

market value, or for other valuable consideration; or (B) the assets

were transferred exclusively for a purpose other than to qualify for

medical assistance; or (C) all assets transferred for less than fair

market value have been returned to the individual; or

(iv) denial of eligibility would cause an undue hardship, as

determined pursuant to the regulations of the department in accordance

with criteria established by the secretary of the federal department of

health and human services.

(4) Any transfer made by an individual or the individual's spouse

under subparagraph three of this paragraph shall cause the person to be

ineligible for services for a period equal to the total, cumulative

uncompensated value of all assets transferred during or after the

look-back period, divided by the average monthly costs of nursing

facility services provided to a private patient for a given period of

time at the time of application, as determined pursuant to the

regulations of the department. The period of ineligibility shall begin

with the first day of the first month during or after which assets have

been transferred for less than fair market value, and which does not

occur in any other periods of ineligibility under this paragraph. For

purposes of this subparagraph, the average monthly costs of nursing

facility services to a private patient for a given period of time at the

time of application shall be presumed to be one hundred twenty percent

of the average medical assistance rate of payment as of the first day of

January of each year for nursing facilities within the region wherein

the applicant resides, as established pursuant to paragraph (b) of

subdivision sixteen of section twenty-eight hundred seven-c of the

public health law.

(5) In the case of an asset held by an individual in common with

another person or persons in a joint tenancy, tenancy in common, or

similar arrangement, the asset, or the affected portion of the asset,

shall be considered to be transferred by such individual when any action

is taken, either by such individual or by any other person, that reduces

or eliminates such individual's ownership or control of such asset.

(6) In the case of a trust established by the individual, as

determined pursuant to the regulations of the department, any payment,

other than a payment to or for the benefit of the individual, from a

revocable trust is considered to be a transfer of assets by the

individual and any payment, other than to or for the benefit of the

individual, from the portion of an irrevocable trust which, under any

circumstance, could be made available to the individual is considered to

be a transfer of assets by the individual and, further, the value of any

portion of an irrevocable trust from which no payment could be made to

the individual under any circumstances is considered to be a transfer of

assets by the individual for purposes of this section as of the date of

establishment of the trust, or, if later, the date on which payment to

the individual is foreclosed.

(e) For transfers made on or after February eighth, two thousand six:

(1)(i) "assets" means all income and resources of an individual and of

the individual's spouse, including income and resources to which the

individual or the individual's spouse is entitled but which are not

received because of action by: the individual or the individual's

spouse; a person with legal authority to act in place of or on behalf of

the individual or the individual's spouse; a person acting at the

direction or upon the request of the individual or the individual's

spouse; or by a court or administrative body with legal authority to act

in place of or on behalf of the individual or the individual's spouse or

at the direction or upon the request of the individual or the

individual's spouse;

(ii) "blind" has the same meaning given to such term in section

1614(a)(2) of the federal social security act.

(iii) "disabled" has the same meaning given to such term in section

1614(a)(3) of the federal social security act.

(iv) "income" has the same meaning given to such term in section 1612

of the federal social security act.

(v) "resources" has the same meaning given to such term in section

1613 of the federal social security act, without regard to the exclusion

provided for in subsection (a)(1) of such section.

* (vi) "look-back period" means the sixty-month period immediately

preceding the date that an institutionalized individual is both

institutionalized and has applied for medical assistance, or in the case

of a non-institutionalized individual, subject to federal approval, the

thirty-month period immediately preceding the date that such

non-institutionalized individual applies for medical assistance coverage

of long term care services. Nothing herein precludes a review of

eligibility for retroactive authorization for medical expenses incurred

during the three months prior to the month of application for medical

assistance.

* NB Effective until January 1, 2027

* (vi) "look-back period" means the sixty-month period immediately

preceding the date that an institutionalized individual is both

institutionalized and has applied for medical assistance, or in the case

of a non-institutionalized individual, subject to federal approval, the

thirty-month period immediately preceding the date that such

non-institutionalized individual applies for medical assistance coverage

of long term care services. Nothing herein precludes a review of

eligibility for retroactive authorization for medical expenses incurred

during the maximum allowable retroactive eligibility period under

federal law.

* NB Effective January 1, 2027

(vii) "institutionalized individual" means any individual who is an

in-patient in a nursing facility, including an intermediate care

facility for individuals with developmental disabilities, or who is an

in-patient in a medical facility and is receiving a level of care

provided in a nursing facility, or who is described in section

1902(a)(10)(A)(ii)(VI) of the federal social security act.

(viii) "intermediate care facility for individuals with developmental

disabilities" means a facility certified under article sixteen of the

mental hygiene law and which has a valid agreement with the department

for providing intermediate care facility services and receiving payment

therefor under title XIX of the federal social security act.

(ix) "nursing facility" means a nursing home as defined by section

twenty-eight hundred one of the public health law and an intermediate

care facility for individuals with developmental disabilities.

(x) "nursing facility services" means nursing care and health related

services provided in a nursing facility; a level of care provided in a

hospital which is equivalent to the care which is provided in a nursing

facility; and care, services or supplies provided pursuant to a waiver

granted pursuant to subsection (c) of section 1915 of the federal social

security act or successor federal waiver.

(xi) "non-institutionalized individual" means an individual who is not

an institutionalized individual, as defined in clause (vii) of this

subparagraph.

(xii) "long term care services" means home health care services,

private duty nursing services, personal care services, assisted living

program services and such other services for which medical assistance is

otherwise available under this chapter which are designated as long term

care services in the regulations of the department.

(2) The uncompensated value of an asset is the fair market value of

such asset at the time of transfer less any outstanding loans,

mortgages, or other encumbrances on the asset, minus the amount of the

compensation received in exchange for the asset.

(3) In determining the medical assistance eligibility of an

institutionalized individual, any transfer of an asset by the individual

or the individual's spouse for less than fair market value made within

or after the look-back period shall render the individual ineligible for

nursing facility services for the period of time specified in

subparagraph five of this paragraph. In determining the medical

assistance eligibility of a non-institutionalized individual, any

transfer of an asset by the individual or the individual's spouse for

less than fair market value made within or after the look-back period

shall render the individual ineligible for community based long term

care services for the period of time specified in subparagraph five of

this paragraph. For purposes of this paragraph:

(i) the purchase of an annuity shall be treated as the disposal of an

asset for less than fair market value unless: the state is named as the

beneficiary in the first position for at least the total amount of

medical assistance paid on behalf of the annuitant, or the state is

named in the second position after a community spouse or minor or

disabled child and is named in the first position if such spouse or a

representative of such child disposes of any such remainder for less

than fair market value; and the annuity meets the requirements of

section 1917(c)(1)(G) of the federal social security act;

(ii) the purchase of a life estate interest in another person's home

shall be treated as the disposal of an asset for less than fair market

value unless the purchaser resided in such home for a period of at least

one year after the date of purchase;

(iii) the purchase of a promissory note, loan, or mortgage shall be

treated as the disposal of an asset for less than fair market value

unless such note, loan, or mortgage meets the requirements of section

1917(c)(1)(I) of the federal social security act.

(4) Notwithstanding the provisions of this paragraph, an individual

shall not be ineligible for services solely by reason of any such

transfer to the extent that:

(i) in the case of an institutionalized individual the asset

transferred was a home and title to the home was transferred to: (A) the

spouse of the individual; or (B) a child of the individual who is under

the age of twenty-one years or blind or disabled; or (C) a sibling of

the individual who has an equity interest in such home and who resided

in such home for a period of at least one year immediately before the

date the individual became an institutionalized individual; or (D) a

child of the individual who was residing in such home for a period of at

least two years immediately before the date the individual became an

institutionalized individual, and who provided care to the individual

which permitted the individual to reside at home rather than in an

institution or facility; or

(ii) the assets: (A) were transferred to the individual's spouse, or

to another for the sole benefit of the individual's spouse; or (B) were

transferred from the individual's spouse to another for the sole benefit

of the individual's spouse; or (C) were transferred to the individual's

child who is blind or disabled, or to a trust established solely for the

benefit of such child; or (D) were transferred to a trust established

solely for the benefit of an individual under sixty-five years of age

who is disabled; or

(iii) a satisfactory showing is made that: (A) the individual or the

individual's spouse intended to dispose of the assets either at fair

market value, or for other valuable consideration; or (B) the assets

were transferred exclusively for a purpose other than to qualify for

medical assistance; or (C) all assets transferred for less than fair

market value have been returned to the individual; or

(iv) denial of eligibility would cause an undue hardship, such that

application of the transfer of assets provision would deprive the

individual of medical care such that the individual's health or life

would be endangered, or would deprive the individual of food, clothing,

shelter, or other necessities of life. The commissioner of health shall

develop a hardship waiver process which shall include a timely process

for determining whether an undue hardship waiver will be granted and a

timely process under which an adverse determination can be appealed. The

commissioner of health shall provide notice of the hardship waiver

process in writing to those individuals who are required to comply with

the transfer of assets provision under this section. If such an

individual is an institutionalized individual, the facility in which he

or she is residing shall be permitted to file an undue hardship waiver

application on behalf of such individual with the consent of the

individual or the personal representative of the individual.

(5) Any transfer made by an individual or the individual's spouse

under subparagraph three of this paragraph shall cause the person to be

ineligible for services for a period equal to the total, cumulative

uncompensated value of all assets transferred during or after the

look-back period, divided by the average monthly costs of nursing

facility services provided to a private patient for a given period of

time at the time of application, as determined pursuant to the

regulations of the department. For purposes of this subparagraph, the

average monthly costs of nursing facility services to a private patient

for a given period of time at the time of application shall be presumed

to be one hundred twenty percent of the average medical assistance rate

of payment as of the first day of January of each year for nursing

facilities within the region where the applicant resides, as established

pursuant to paragraph (b) of subdivision sixteen of section twenty-eight

hundred seven-c of the public health law. The period of ineligibility

shall begin the first day of a month during or after which assets have

been transferred for less than fair market value, or the first day the

otherwise eligible individual is receiving services for which medical

assistance coverage would be available based on an approved application

for such care but for the provisions of subparagraph three of this

paragraph, whichever is later, and which does not occur in any other

periods of ineligibility under this paragraph.

(6) In the case of an asset held by an individual in common with

another person or persons in a joint tenancy, tenancy in common, or

similar arrangement, the asset, or the affected portion of the asset,

shall be considered transferred by such individual when any action is

taken, either by such individual or by any other person, that reduces or

eliminates such individual's ownership or control of such asset.

(7) In the case of a trust established by the individual, as

determined pursuant to the regulations of the department, any payment,

other than a payment to or for the benefit of the individual, from a

revocable trust is considered to be a transfer of assets by the

individual and any payment, other than to or for the benefit of the

individual, from the portion of an irrevocable trust which, under any

circumstance, could be made available to the individual is considered to

be a transfer of assets by the individual and, further, the value of any

portion of an irrevocable trust from which no payment could be made to

the individual under any circumstances is considered to be a transfer of

assets by the individual for purposes of this section as of the date of

establishment of the trust, or, if later, the date on which the payment

to the individual is foreclosed.

(f) The commissioner shall promulgate such rules and regulations as

may be necessary to carry out the provisions of this subdivision.

* 6. a. The commissioner of health shall apply for a home and

community-based services waiver pursuant to subdivision (c) of section

nineteen hundred fifteen of the federal social security act in order to

provide home and community-based services, not included under the

medical assistance program.

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

(i) be twenty-one years of age or under;

(ii) be physically disabled, according to the federal supplemental

security income program criteria, including but not limited to a person

who is multiply disabled;

(iii) require the level of care provided by a nursing facility or by a

hospital;

(iv) be capable of being cared for in the community if provided with

case management services and/or other services specified in paragraph f

of this subdivision, in addition to other services provided under this

title, as determined by the assessment required by paragraph d of this

subdivision;

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

(vi) meet such other criteria as may be established by the

commissioner as may be necessary to administer the provisions of this

subdivision in an equitable manner.

c. Social services districts shall assess the eligibility of persons

in accordance with the provisions of paragraphs b and d of this

subdivision and shall refer persons who appear to meet the criteria set

forth in such paragraphs to the commissioner of health for consideration

for participation in the waiver program and final determinations of

their eligibility for participation in the waiver program.

d. The commissioner of health shall designate persons to assess the

eligibility of persons in accordance with paragraphs b and c of this

subdivision under consideration for participation in the waiver program.

Persons designated by such commissioner may include the person's

physician, a representative of the social services district, a

representative of the provider of a long term home health care program

or certified home health agency and, where appropriate, the discharge

coordinator of the hospital or nursing facility and such other persons

as such commissioner deems appropriate. The assessment shall include,

but need not be limited to, an evaluation of the medical, social,

habilitation, and environmental needs of the person and shall serve as

the basis for the development and provision of an appropriate plan of

care for the person.

e. Prior to a person's participation in the waiver program, the social

services district or the commissioner of health, as appropriate, shall

undertake or arrange for the development of a written plan of care for

the provision of services consistent with the level of care determined

by the assessment, in accordance with criteria established by the

commissioner of health.

f. Home and community-based services which may be provided to persons

specified in paragraph b of this subdivision include: (i) case

management services; (ii) respite services; (iii) home adaptation; (iv)

hospice and palliative care services; and (v) such other home and

community-based services, other than room and board, as may be approved

by the secretary of the federal department of health and human services.

g. Social services districts shall designate who may provide the home

and community-based services identified in paragraph f of this

subdivision, subject to the approval of the commissioner of health.

h. Notwithstanding any other provision of this chapter or any other

law to the contrary, for purposes of determining medical assistance

eligibility for persons specified in paragraph b of this subdivision,

the income and resources of responsible relatives shall not be deemed

available for as long as the person meets the criteria specified in this

subdivision.

i. Before a person may participate in the waiver program specified in

paragraph a of this subdivision, the department of health shall

determine that the annual medical assistance expenditures for home and

community-based services for all persons participating in the waiver

program would not exceed the annual medical assistance expenditures for

nursing facility and hospital services for all such persons had the

waiver not been granted.

j. The commissioner shall review the plans of care and expenditure

estimates determined by social services districts prior to the

participation of any person in the waiver program.

k. This subdivision shall be effective only if, and as long as,

federal financial participation is available for expenditures incurred

under this subdivision.

* NB Repealed March 31, 2028

6-a. a. The commissioner of health shall apply for a nursing facility

transition and diversion medicaid waiver pursuant to subdivision (c) of

section nineteen hundred fifteen of the federal social security act in

order to provide home and community based services to individuals who

would otherwise be cared for in a nursing facility and who would be

considered to be part of an aggregate group of individuals who, taken

together, will be cared for at less cost in the community than they

would have otherwise and to provide reimbursement for several home and

community based services not presently included in the medical

assistance program. The initial application shall provide for no less

than five thousand persons to be eligible to participate in the waiver

spread over the first three years and continue to increase thereafter.

b. A person eligible for participation in the nursing facility

transition and diversion medicaid waiver program shall:

(i) be at least eighteen years of age;

(ii) be eligible for and in receipt of medicaid authorization for long

term care services, including nursing facility services;

(iii) have resided in a nursing facility and/or have been assessed and

determined to require the level of care provided by a nursing facility;

(iv) be capable of residing in the community if provided with services

specified in paragraph f of this subdivision, in addition to other

services provided under this title, as determined by the assessment

required by paragraph d of this subdivision; and

(v) meet such other criteria as may be established by the commissioner

of health as may be necessary to administer the provision of this

subdivision in an equitable manner.

c. The department of health shall develop such waiver application in

conjunction with independent living centers, representatives from

disability and senior groups and such other interested parties as the

department shall determine to be appropriate.

d. The commissioner of health shall contract with not-for-profit

agencies around the state that have experience with providing community

based services to individuals with disabilities, hereinafter referred to

as regional resource development specialists, who shall be responsible

for initial contact with the prospective waiver participant, for

assuring the waiver candidates have choice in selecting a service

coordinator and other providers, and for assessing applicants including

decisions for eligibility for participation in the waiver, which contain

the original service plan and all subsequent revised service plans.

Regional resource development specialists shall be responsible for

approving service plans and the department of health shall provide

technical assistance and oversight.

e. Prior to the person's participation in the waiver program, a

service coordinator approved by the department of health shall undertake

the development of a written plan of care for the provision of services

consistent with the level of care determined by an initial assessment,

in accordance with criteria established by the commissioner of health.

Such plans shall set forth the type of services to be furnished, the

amount, the frequency and duration of each service and the type of

providers to furnish each service.

f. Nursing facility transition and diversion services which may be

provided to persons specified in paragraph b of this subdivision shall

be established and defined as part of the waiver application development

process specified in paragraph c of this subdivision and may include:

(i) case management services; (ii) personal care; (iii) independent

living skills training; (iv) environmental accessibility adaptations;

(v) costs of community transition services; (vi) assistive technology;

(vii) adult day health; (viii) staff for safety assurance; (ix)

non-medical support services needed to maintain independence; (x)

respite services; and (xi) such other home and community based services

as may be approved by the secretary of the federal department of health

and human services.

g. The department of health shall designate who may provide the

nursing facility transition and diversion services identified in

paragraph f of this subdivision, subject to the approval of the

commissioner of health.

h. Before a person may participate in the nursing transition waiver

program specified in this subdivision, the regional resource development

specialists shall determine that:

(i) the individual is at least eighteen years of age and eligible for

and in receipt of medicaid authorization for long term care services,

including nursing facility services; and

(ii) the individual resides in a nursing facility and/or has been

assessed and determined to require nursing facility care.

7. a. The commissioner of health shall apply for a home and

community-based waiver, pursuant to subdivision (c) of section nineteen

hundred fifteen of the federal social security act, in order to provide

home and community-based services not presently included in the medical

assistance program.

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

(i) be twenty-one years of age or under;

(ii) have a developmental disability, as such term is defined in

subdivision twenty-two of section 1.03 of the mental hygiene law;

(iii) demonstrate complex health care needs, as defined in paragraph c

of this subdivision;

(iv) require the level of care provided by an intermediate care

facility for the developmentally disabled;

(v) not be hospitalized or receiving care in a nursing facility, an

intermediate care facility for the developmentally disabled or any other

institution;

(vi) be capable of being cared for in the community if provided with

case management services, respite services, home adaptation, and any

other home and community-based services, other than room and board, as

may be approved by the secretary of the federal department of health and

human services, in addition to other services provided under this title,

as determined by the assessment required by paragraph f of this

subdivision;

(vii) be ineligible for medical assistance because the income and

resources of responsible relatives are deemed available to him or her,

causing him or her to exceed the income or resource eligibility level

for such assistance;

(viii) be capable of being cared for at less cost in the community

than in an intermediate care facility for the developmentally disabled;

and

(ix) meet such other criteria as may be established by the

commissioner of health, in conjunction with the commissioner of the

office for people with developmental disabilities, as may be necessary

to administer the provisions of this subdivision in an equitable manner,

including those criteria established pursuant to paragraph d of this

subdivision.

c. For purposes of this subdivision, persons who "demonstrate complex

health care needs", shall be defined as persons who require medical

therapies that are designed to replace or compensate for a vital body

function or avert immediate threat to life; that is, persons who rely on

medical devices, nursing care, monitoring or prescribed medical therapy

for the maintenance of life over a period expected to extend beyond

twelve months.

d. The commissioner of health, in conjunction with the commissioner of

the office for people with developmental disabilities, shall establish

selection criteria to ensure that participants are those who are most in

need and reflect an equitable geographic distribution. Such selection

criteria shall include, but not be limited to, the imminent risk of

institutionalization, the financial burden imposed upon the family as a

result of the child's health care needs, and the level of stress within

the family unit due to the unrelieved burden of caring for the child at

home.

e. Social services districts, in consultation with the office for

people with developmental disabilities, shall assess the eligibility of

persons in accordance with the provisions of paragraph b of this

subdivision, as well as the selection criteria established by the

commissioner of health and the commissioner of the office for people

with developmental disabilities as required by paragraph d of this

subdivision.

f. The commissioner of health, in conjunction with the commissioner of

the office for people with developmental disabilities, shall designate

persons to assess the eligibility of persons under consideration for

participation in the waiver program. Persons designated by such

commissioners may include the person's physician, a representative of

the social services district, representative of the appropriate

developmental disabilities services office and such other persons as the

commissioners deem appropriate. The assessment shall include, but need

not be limited to, an evaluation of the health, psycho-social,

developmental, habilitation and environmental needs of the person and

shall serve as the basis for the development and provision of an

appropriate plan of care for such person.

g. Prior to a person's participation in the waiver program, the office

for people with developmental disabilities shall undertake or arrange

for the development of a written plan of care for the provision of

services consistent with the level of care determined by the assessment,

in accordance with criteria established by the commissioner of health,

in consultation with the commissioner of the office for people with

developmental disabilities. Such plan of care shall be reviewed by such

commissioners prior to the provision of services pursuant to the waiver

program.

h. Home and community-based services which may be provided to persons

specified in paragraph b of this subdivision shall, in addition to those

services otherwise authorized, include (i) case management services;

(ii) respite services; (iii) home adaptation, and (iv) such other home

and community-based services, other than room and board, as may be

approved by the secretary of the federal department of health and human

services.

i. The office for people with developmental disabilities shall

designate who may provide the home and community-based services

identified in paragraph h of this subdivision, subject to the approval

of the commissioner of health.

j. Notwithstanding any other provision of this chapter other than

subdivision six of this section or any other law to the contrary, for

purposes of determining medical assistance eligibility for persons

specified in paragraph b of this subdivision, the income and resources

of a responsible relative shall not be deemed available for as long as

the person meets the criteria specified in this subdivision.

k. Before a person may participate in the waiver program specified in

paragraph a of this subdivision, the office for people with

developmental disabilities shall determine that there is a reasonable

expectation that the annual medical assistance expenditures for such

person under the waiver would not exceed the expenditures for care in an

intermediate care facility for the developmentally disabled that would

have been made had the waiver not been granted.

l. The commissioner of health, in conjunction with the commissioner of

the office for people with developmental disabilities, shall review the

plans of care and expenditure estimates prior to the participation of

any person in the waiver program.

m. Within one year of federal waiver approval, and on an annual basis

thereafter, until such time as the waiver program is fully implemented,

the commissioner of health, in conjunction with the commissioner of the

office for people with developmental disabilities, shall report on the

status of the waiver program to the governor and the legislature. Such

report shall specify the number of children participating in the waiver

program, the geographic distribution of those so participating, health

profiles, service costs and length of time the children have

participated in the waiver program. The report shall also provide

follow-up information on children who have withdrawn from the waiver

program, including data on residential program placements.

n. This subdivision shall be effective only if, and as long as,

federal financial participation is available for expenditures incurred

under this subdivision.

7-a. a. The commissioner of health in consultation with the

commissioner of developmental disabilities shall apply for a home and

community-based waiver, pursuant to subdivision (c) of section nineteen

hundred fifteen of the federal social security act, in order to provide

home and community-based services for a population of persons with

developmental disabilities, as such term is defined in section 1.03 of

the mental hygiene law.

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

(i) have a developmental disability as such term is defined in

subdivision twenty-two of section 1.03 of the mental hygiene law;

(ii) meet the level of care criteria provided by an intermediate care

facility for the developmentally disabled;

(iii) be eligible for Medicaid;

(iv) live at home or in an individualized residential alternative,

community residence or family care home, operated or licensed by the

office for people with developmental disabilities;

(v) be capable of being cared for in the community if provided with

such services as respite, home adaptation, or other home and

community-based services, other than room and board, as may be approved

by the secretary of the federal department of health and human services,

in addition to other services provided under this title, as determined

by the assessment required by paragraph c of this subdivision;

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

services; and

(vii) meet such other criteria as may be established by the

commissioner of health and the commissioner of developmental

disabilities, as may be necessary to administer the provisions of this

subdivision.

c. The commissioner of developmental disabilities shall assess the

eligibility of persons enrolled, or seeking to enroll, in the waiver

program. The assessment shall include, but need not be limited to, an

evaluation of the health, psycho-social, developmental, habilitation and

environmental needs of the person and shall serve as the basis for the

development and provision of an appropriate person centered plan of care

for such person.

d. The office for people with developmental disabilities shall

undertake or arrange for the development of a written person centered

plan of care for each person enrolled in the waiver. Such person

centered plan of care shall describe the provision of home and community

based waiver services consistent with the assessment for each person.

e. The office for people with developmental disabilities shall review

the person centered plan of care and authorize those home and community

based services to be included in the person centered plan of care,

taking into account the person's assessed needs, valued outcomes and

available resources.

f. The commissioners of developmental disabilities and health shall

determine quality standards for organizations providing services under

such waiver and shall authorize organizations that meet such standards

to provide such services.

g. The commissioner of developmental disabilities or health may

promulgate rules and regulations as necessary to effectuate the

provisions of this section.

h. This subdivision shall be effective only if, and as long as,

federal financial participation is available for expenditures incurred

under this subdivision.

7-b. Services and needs assessment. The assessment completed pursuant

to subdivision seven-a of this section shall be based upon a valid and

reliable assessment tool. The assessment shall also include an

evaluation of the individual's home environment, including but not

limited to, the ability of family and/or caregivers to provide supports

outside of those within the waiver, including but not limited to,

activities of daily living.

7-c. The commissioner of health in consultation with the commissioner

of developmental disabilities is authorized to submit the appropriate

waivers, including, but not limited to, those authorized pursuant to

section eleven hundred fifteen of the federal social security act, in

order to achieve the purposes of high-quality and integrated care and

services for a population of persons with developmental disabilities, as

such term is defined in section 1.03 of the mental hygiene law. Such

waiver applications shall be executed consistent with subdivisions

seven, seven-a, and seven-b of this section, to the extent those

sections comply with the requirements of section eleven hundred fifteen

of the federal social security act. Nothing in subdivision seven of this

section shall prevent the commissioner of health, in consultation with

the commissioner of developmental disabilities, from submitting waiver

applications expanding eligibility under such waivers to children under

eighteen years or age who are eligible for medical assistance.

8. Notwithstanding any inconsistent provision of this chapter or any

other law to the contrary, income and resources which are otherwise

exempt from consideration in determining a person's eligibility for

medical care, services and supplies available under this title, shall be

considered available for the payment or part payment of the costs of

such medical care, services and supplies as required by federal law and

regulations.

9. a. The commissioner shall apply for a general waiver, pursuant to

subdivision (c) of section nineteen hundred fifteen of the federal

social security act, in order to provide medical assistance for persons

specified in paragraphs b and c of this subdivision and reimbursement

for several home and community-based services not presently included in

the medical assistance program. If granted the general waiver, the

commissioner may authorize such persons to receive services under the

general waiver to the extent funds are appropriated for transfer to the

department for the state share of medical assistance payments for such

waiver services from the budget of the office of mental health.

b. Persons eligible for inclusion in the general waiver shall:

(i) be under twenty-one years of age;

(ii) have a mental illness, as such term is defined in subdivision

twenty of section 1.03 of the mental hygiene law;

(iii) demonstrate complex health or mental health care needs, as

defined in paragraph d of this subdivision;

(iv) require the level of care provided by a hospital as defined in

subdivision ten of section 1.03 of the mental hygiene law which provides

intermediate or long-term care and treatment, or within the past six

months have been hospitalized for at least thirty consecutive days, or

have resided in such a hospital for at least one hundred eighty

consecutive days;

(v) be capable of being cared for in the community if provided with

case management services, clinical interventions, crisis services,

social training, rehabilitation services, counseling, respite services,

medication therapy, partial hospitalization, environmental

modifications, educational and related services, and/or medical social

services, in addition to other services, as determined by the assessment

required by paragraph g of this subdivision and included in the written

plan of care developed pursuant to paragraph h of this subdivision;

(vi) be eligible or, if discharged, would be eligible for medical

assistance, or are ineligible for medical assistance because the income

and resources of responsible relatives are or, if discharged, would be

deemed available to such persons causing them to exceed the income or

resource eligibility level for such assistance;

(vii) be capable of being cared for at less cost in the community than

in a hospital, as defined in subdivision ten of section 1.03 of the

mental hygiene law; and

(viii) meet such other criteria as may be established by the

commissioner of mental health, in conjunction with the commissioner, as

may be necessary to administer the provisions of this subdivision in an

equitable manner, including those criteria established pursuant to

paragraph e of this subdivision.

c. Persons eligible for inclusion in the general waiver shall meet all

the requirements set forth in subparagraphs (i) through (viii) of

paragraph b of this subdivision; and shall be eligible for, shall have

applied for, or shall reside in an institutional placement including a

hospital as defined in subdivision ten of section 1.03 of the mental

hygiene law which provides intermediate or long-term care and treatment.

d. For purposes of this subdivision, persons who "demonstrate complex

health or mental health care needs", shall be defined as persons who

require medical or mental health therapies, care or treatments that are

designed to replace or compensate for a vital functional limitation or

to avert an immediate threat to life; that is, persons who rely on

mental health care, nursing care, monitoring, or prescribed medical or

mental health therapy for the maintenance of quality of life over a

period expected to extend beyond twelve months.

e. The commissioner of mental health, in conjunction with the

commissioner, shall establish selection criteria to ensure that

participants are those who are most in need. Such selection criteria

shall include, but not be limited to: the need for continued

hospitalization or the risk of hospitalization; the financial burden

imposed upon the family, or which would be imposed upon the family if an

institutionalized participant were to be discharged, as a result of the

child's health or mental health care needs; and the level of stress or

the anticipated level of stress within the family unit due to the

unrelieved burden of caring for the child at home.

f. Social services districts, in conjunction with the office of mental

health and the local governmental unit as defined in section 41.03 of

the mental hygiene law, shall determine the eligibility of persons in

accordance with the provisions of paragraphs b and c of this

subdivision, as well as the selection criteria established by the

commissioner and the commissioner of mental health as required by

paragraph e of this subdivision.

g. The commissioner of mental health, in conjunction with the

commissioner, shall designate persons to undertake an assessment to

determine the eligibility of persons under consideration for inclusion

in the general waiver. Persons designated by such commissioners may

include the potentially eligible person's physician, a representative of

the local governmental unit as defined in section 41.03 of the mental

hygiene law, a representative of the appropriate hospital or regional

office of the office of mental health, and such other persons as the

commissioners deem appropriate. The assessment shall include, but not be

limited to, an evaluation of the mental health, health, psycho-social,

rehabilitation and environmental needs of the person, and shall serve as

the basis for the development and provision of an appropriate plan of

care for such person.

h. Prior to a person's inclusion in the general waiver, the office of

mental health and the local governmental unit as defined in section

41.03 of the mental hygiene law, shall undertake or arrange for the

development of a written plan of care, including identification of

service providers if known, for the provision of services in

consultation with the individual and their family whenever clinically

appropriate, consistent with the level of care determined by the

assessment, in accordance with criteria established by the commissioner

of mental health, in consultation with the commissioner. If a provider

of services is identified in a written plan of care, such provider shall

be designated pursuant to paragraph j of this subdivision. Such plan of

care shall be reviewed by such commissioners and approved by the

commissioner of mental health prior to the provision of services

pursuant to the general waiver.

i. Home and community-based services which may be provided to persons

specified in paragraphs b and c of this subdivision shall, in addition

to those services otherwise authorized, include but are not limited to

(i) case management services; (ii) clinical interventions; (iii) crisis

services; (iv) social training; (v) rehabilitation services; (vi)

counseling; (vii) respite services; (viii) medication therapy; (ix)

partial hospitalization; (x) environmental modifications; (xi)

educational and related services; (xii) medical social services; and

other services included in the written plan of care developed pursuant

to paragraph h of this subdivision.

j. The office of mental health, in conjunction with the social

services district and the local governmental unit, shall designate who

may provide the home and community-based services identified in

paragraph i of this subdivision.

k. Notwithstanding any provision of this chapter other than

subdivision six or seven of this section, or any other law to the

contrary, for purposes of determining medical assistance eligibility for

persons specified in paragraphs b and c of this subdivision, the income

and resources of a responsible relative shall not be deemed available

for as long as the person meets the criteria specified in this

subdivision.

l. Before a person may participate in the general waiver specified in

paragraph a of this subdivision, the social services district and the

office of mental health shall determine that there is a reasonable

expectation that the annual medical assistance expenditures for such

person under the waiver would not exceed the expenditures for care in a

hospital, as defined in subdivision ten of section 1.03 of the mental

hygiene law, that would have been made had the waiver not been granted.

m. The commissioner, in conjunction with the commissioner of mental

health, shall review the expenditure estimates determined by social

services districts and the office of mental health, prior to the

inclusion of any person in the general waiver.

n. Within one year of federal waiver approval, and on an annual basis

thereafter, until such time as the waiver is fully implemented, the

commissioner of mental health, in conjunction with the commissioner,

shall report on the status of the general waiver to the governor, the

legislature, including the respective chairpersons of the senate and

assembly committees of mental health and the chairs of the senate

finance and assembly ways and means committees and the director of the

division of the budget. Such report shall specify the number of children

included in the waiver, the geographic distribution of those included,

health and mental health profiles, utilization and costs of services by

region including costs avoided in residential treatment facilities and

inpatient facilities operated by the office of mental health, the length

of time the children have participated in the waiver and regional

information on the status of waiting lists for waiver services and for

services in residential settings, where appropriate. The report shall

also provide follow-up information on children who have withdrawn from

the waiver, including data on residential program placements.

o. This subdivision shall be effective if, and as long as, federal

financial participation is available for expenditures incurred under

this subdivision.

p. Nothing herein shall be construed to create an entitlement to

services under the approved general waiver implemented by the

commissioner in accordance with this subdivision.

11. The commissioner of health shall, consistent with this title, make

any necessary amendments to the state plan for medical assistance

submitted pursuant to section three hundred sixty-three-a of this title,

in order to ensure federal financial participation in expenditures under

subparagraphs twelve and thirteen of paragraph (a) of subdivision one of

this section. Notwithstanding any other provision of law to the

contrary, medical assistance under subparagraphs twelve and thirteen of

paragraph (a) of subdivision one of this section shall be provided only

to the extent permitted under federal law, if, for so long as, and to

the extent that federal financial participation is available therefor.

12. (a) Notwithstanding any provision of law to the contrary, the

commissioner of health, in consultation with the office of children and

family services, shall develop and submit applications for waivers

pursuant to section nineteen hundred fifteen of the federal social

security act as may be necessary to provide medical assistance,

including services not presently included in the medical assistance

program, for persons described in paragraph (b) of this subdivision. If

granted such waivers, the commissioner of health, on the advice and

recommendation of the commissioner of children and family services, may

authorize such persons to receive such assistance to the extent funds

are appropriated therefor.

(b) Persons eligible for inclusion in the waiver program established

by this subdivision shall be residents of New York state under the age

of twenty-one years, who are eligible for care in a medical institution,

who have had the responsibility for their care and placement transferred

to the local commissioner of a social services district or to the office

of children and family services as adjudicated juvenile delinquents

under article three of the family court act, where placement is in a

non-secure setting, and who:

(i) have a diagnosis of a mental disorder under the most recent

edition of the Diagnostic and Statistical Manual of Mental Disorders;

(ii) have a diagnosis of a developmental disability as defined in

section 1.03 of the mental hygiene law; or

(iii) have a physical disability.

(c) Services which may be provided to persons specified in paragraph

(b) of this subdivision, in addition to services otherwise authorized,

may include but are not limited to:

(i) services that will permit children to be better served, prevent

institutionalization, and allow utilization at lower-levels of

institutional care;

(ii) case management services;

(iii) respite services;

(iv) medical social services;

(v) nutritional counseling;

(vi) respiratory therapy;

(vii) home adaptation and/or environmental modifications;

(viii) clinical interventions;

(ix) crisis services;

(x) social training;

(xi) habilitation and rehabilitation services;

(xii) counseling;

(xiii) medication therapy;

(xiv) partial hospitalization;

(xv) educational and related services; and

(xvi) other services included in the written plan of care.

(d) Notwithstanding any provision of this chapter or any other law to

the contrary, for purposes of determining medical assistance eligibility

for persons specified in paragraph (b) of this subdivision, the income

and resources of a legally responsible relative shall not be deemed

available for as long as the person meets the criteria specified in this

subdivision; provided, however, that such income shall continue to be

deemed unavailable should responsibility for the care and placement of

the person be returned to his or her parent or other legally responsible

person.

(e) Before a person may participate in the waiver program established

by this subdivision, the social services district that is fiscally

responsible for the person shall determine that there is a reasonable

expectation that annual medical assistance expenditures for such person

will not exceed federal requirements.

(f) The eligibility and benefits authorized by this subdivision shall

be applicable if, and as long as, federal financial participation is

available for expenditures incurred under this subdivision. The

eligibility and benefits authorized by this subdivision shall not apply

unless all necessary approvals under federal law and regulation have

been obtained to receive federal financial participation in the costs of

services provided pursuant to this subdivision.

(g) Nothing in this subdivision shall be construed to create an

entitlement to services under the waiver program established by this

subdivision.

(h) A person participating in the waiver program established by this

subdivision may continue participation in the program until it is no

longer consistent with the plan of care, or until age twenty-one,

whichever occurs earlier, notwithstanding the person's status as having

been discharged from the care and placement of the local commissioner of

a social services district or the commissioner of children and family

services, including adoption or participation in the kinship

guardianship assistance program under title ten of article six of this

chapter.

13. The commissioner of health, in consultation with the commissioner

of the office of children and family services, shall make any available

amendments to the state plan for medical assistance submitted pursuant

to section three hundred sixty-three-a of this title, or, if an

amendment is not possible, develop and submit an application for any

waiver under the federal social security act that may be available to

provide medical assistance for those children receiving kinship

guardianship assistance payments under title ten of article six of this

chapter who are not automatically eligible for such medical assistance

under title IV-E of the federal social security act.

14. The commissioner of health may make any available amendments to

the state plan for medical assistance submitted pursuant to section

three hundred sixty-three-a of this title, or, if an amendment is not

possible, develop and submit an application for any waiver or approval

under the federal social security act that may be necessary to disregard

or exempt an amount of income, for the purpose of assisting with housing

costs, for individuals receiving coverage of nursing facility services

under this title, other than short-term rehabilitation services, and for

individuals in receipt of medical assistance while in an adult home, as

defined in subdivision twenty-five of section two of this chapter, who:

are (i) discharged to the community; and (ii) if eligible, enrolled or

required to enroll and have initiated the process of enrolling in a plan

certified pursuant to section forty-four hundred three-f of the public

health law; and (iii) do not meet the criteria to be considered an

"institutionalized spouse" for purposes of section three hundred

sixty-six-c of this title.

15. The commissioner may contract with one or more entities to engage

in education, outreach services, and facilitated enrollment activities

for aged, blind, and disabled persons who may be eligible for coverage

under this title.

16. (a) The commissioner of health is authorized to submit the

appropriate waivers and/or any other required requests for federal

approval, including but not limited to, those authorized in section

eleven hundred fifteen of the federal social security act, in order to

establish expanded medical assistance eligibility for working disabled

individuals. Such waiver applications shall be executed consistent with

paragraphs (b), (c), (d) and (e) of this subdivision, to the extent

those sections comply with the requirements of section eleven hundred

fifteen of the federal social security act. Notwithstanding

subparagraphs five and six of paragraph (c) of subdivision one of this

section and subdivision twelve of section three hundred sixty-seven-a of

this title, or any other provision of law to the contrary, if granted

such waiver, the commissioner of health may authorize eligible persons

to receive medical assistance pursuant to the waiver if, for so long as,

and to the extent that, financial participation is available therefor.

The waiver application shall provide for thirty thousand persons to be

eligible to participate in such waiver.

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

(i) be a disabled individual, defined as having a medically

determinable impairment of sufficient severity and duration to qualify

for benefits under Titles II or XVI of the social security act;

(ii) be at least sixteen years of age;

(iii) be otherwise eligible for medical assistance benefits, but for

earnings and/or resources in excess of the allowable limit;

(iv) have net available income, determined in accordance with

subdivision two of this section, that does not exceed two thousand two

hundred fifty percent of the applicable federal poverty line, as defined

and updated by the United States department of health and human

services;

(v) have resources, as defined in paragraph (e) of subdivision two of

section three hundred sixty-six-c of this title, other than retirement

accounts, that do not exceed three hundred thousand dollars;

(vi) contribute to the cost of medical assistance provided pursuant to

this paragraph in accordance with paragraph (d) of this subdivision; and

(vii) meet such other criteria as may be established by the

commissioner as may be necessary to administer the provisions of this

subdivision in an equitable manner.

(c) An individual at least sixteen years of age who: is employed;

ceases to be eligible for participation in such waiver pursuant to

paragraph (b) of this subdivision because the person, by reason of

medical improvement, is determined at the time of a regularly scheduled

continuing disability review to no longer be certified as disabled under

the social security act; continues to have a severe medically

determinable impairment, to be determined in accordance with applicable

federal regulations; and contributes to the cost of medical assistance

provided pursuant to this paragraph in accordance with paragraph (d) of

this subdivision, shall be eligible for participation in such waiver.

For purposes of this paragraph, a person is considered to be employed if

the person is earning at least the applicable minimum wage under section

six of the federal fair labor standards act and working at least forty

hours per month.

(d) Prior to receiving medical assistance pursuant to such waiver, a

person whose net available income is greater than or equal to two

hundred fifty percent of the applicable federal poverty line shall pay a

monthly premium, in accordance with a procedure to be established by the

commissioner, provided that no enrollee shall pay a monthly premium that

exceeds exceed eight and one-half percent of the enrollee's monthly

income. The amount of such premium for a person whose net available

income is greater than or equal to two hundred fifty percent of the

applicable federal poverty line, but less than three hundred percent of

the applicable federal poverty line shall be three hundred and

forty-seven dollars but shall not exceed four percent of the enrollee's

monthly income. The amount of such premium for a person whose net

available income is greater than or equal to three hundred percent of

the applicable federal poverty line, but less than four hundred percent

of the applicable federal poverty line shall be five hundred eighteen

dollars but shall not exceed six percent of the enrollee's monthly

income. The amount of such premium for a person whose net available

income is greater than or equal to four hundred percent of the

applicable federal poverty line, but less than five hundred percent of

the applicable federal poverty line shall be seven hundred and

seventy-nine dollars but shall not exceed eight and one-half percent of

the enrollee's monthly income. The amount of such premium for a person

whose net available income is equal to or greater than five hundred

percent of the applicable federal poverty line shall be one thousand

thirty-three dollars but shall not exceed eight and one-half percent of

the enrollee's monthly income. No premium shall be required from a

person whose net available income is less than two hundred fifty percent

of the applicable federal poverty line.

(e) Notwithstanding any other provision of this section or any other

law to the contrary, for purposes of determining medical assistance

eligibility for persons specified in paragraph (b) or (c) of this

subdivision, the income and resources of responsible relatives shall not

be deemed available for as long as the person meets the criteria

specified in this subdivision.