NY Soc Serv L § 366 (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 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  woman  or  an infant younger than one year of age is eligible for standard coverage if his or her MAGI household income  does not  exceed  the  MAGI-equivalent  of two hundred percent of the federal poverty line for the applicable family size, which shall  be  calculated in accordance with guidance issued by the secretary of the United States department  of  health and human services, or an infant younger than one year of age  who  meets  the  presumptive  eligibility  requirements  of subdivision four of section three hundred sixty-four-i of this title.  (3)  A child who is at least one year of age but younger than nineteen years of age is eligible for  standard  coverage  if  his  or  her  MAGI household  income  does  not  exceed  the MAGI-equivalent of one hundred thirty-three percent of the federal  poverty  line  for  the  applicable family  size,  which  shall  be  calculated  in accordance with guidance issued by the Secretary of the United States department  of  health  and human  services,  or a child who is at least one year of age but younger than nineteen  years  of  age  who  meets  the  presumptive  eligibility requirements  of  subdivision four of section three hundred sixty-four-i of this title.  (4) An individual who is a pregnant woman or is a member of  a  family that  contains a dependent child living with a parent or other caretaker relative is eligible for standard coverage if his or her MAGI  household income does not exceed the MAGI-equivalent of one hundred thirty percent of  the  highest amount that ordinarily would have been paid to a person without any income or resources under the family assistance  program  as it  existed on the first day of November, nineteen hundred ninety-seven, which shall be calculated in accordance  with  guidance  issued  by  the Secretary  of the United States department of health and human services; for purposes of this subparagraph, the  term  dependent  child  means  a person  who  is under eighteen years of age, or is eighteen years of age and a full-time student, who is deprived of parental support or care  by reason of the death, continued absence, or physical or mental incapacity of  a parent, or by reason of the unemployment of the parent, as defined by the department of health.  (5) A child who is under twenty-one years of age and who was in foster care under the responsibility of the state  on  his  or  her  eighteenth birthday   is   eligible  for  standard  coverage;  notwithstanding  any provision of law to the contrary, the provisions  of  this  subparagraph shall  be  effective  only  if  and  for  so  long  as federal financial participation is available in the costs of medical assistance  furnished hereunder.  (6) An individual who is not otherwise eligible for medical assistance under  this section is eligible for coverage of family planning services reimbursed by the federal government at a rate of  ninety  percent,  and for  coverage of those services identified by the commissioner of health as services generally performed as part  of  or  as  a  follow-up  to  a service  eligible  for  such  ninety  percent  reimbursement,  including treatment for sexually transmitted diseases, if his or her  income  does not  exceed  the  MAGI-equivalent  of two hundred percent of the federal poverty line for the applicable family size, which shall  be  calculated in accordance with guidance issued by the secretary of the United States department  of  health  and  human  services;  provided further that the commissioner  of  health  is  authorized  to  establish   criteria   for presumptive   eligibility   for   services  provided  pursuant  to  this  subparagraph in accordance with all applicable requirements  of  federal law or regulation pertaining to such eligibility.   * (7)  A  child who is nineteen or twenty years of age living with his or her parent will be eligible for standard coverage if the sum  of  the MAGI-based income of every person included in the child's MAGI household exceeds  one  hundred  thirty-three  percent,  but  does  not exceed one hundred fifty percent, of the federal poverty line  for  the  applicable family size.   * NB Repealed October 1, 2024  (7-a)  An  individual is eligible for benchmark coverage if his or her MAGI household income exceeds one hundred thirty-three  percent  of  the federal poverty line for the applicable family size and he or she:  (i)  was  eligible  or  would have been eligible for the family health plus program without federal financial participation  in  the  costs  of medical care and services under such program; and  (ii)  is  not  eligible  to  enroll in a qualified health plan offered through the state health benefit exchange established  pursuant  to  the federal  Patient  Protection  and Affordable Care Act (P.L. 111-148), as amended by the federal Health Care and Education Reconciliation  Act  of 2010 (P.L. 111-152).  (c)  Non-MAGI eligibility groups. Individuals listed in this paragraph are eligible  for  standard  coverage.  Where  a  financial  eligibility determination  must  be  made  by  the  medical  assistance  program for individuals  in  these  groups,  such  financial  eligibility  will   be determined in accordance with subdivision two of this section.  (1)   An   individual   receiving   or  eligible  to  receive  federal supplemental security income payments and/or additional  state  payments pursuant  to  title  six  of this article; any inconsistent provision of this chapter or other law notwithstanding, the department may  designate the  office  of  temporary  and  disability  assistance  as its agent to discharge its responsibility, or so much of  its  responsibility  as  is permitted  by  federal  law,  for  determining  eligibility  for medical assistance with respect to persons  who  are  not  eligible  to  receive federal  supplemental  security  income payments but who are receiving a state administered supplementary payment or mandatory minimum supplement in accordance with the provisions of  subdivision  one  of  section  two hundred twelve of this article.  (2)  An  individual  who,  although not receiving public assistance or care for his or her maintenance under other provisions of this  chapter, has  income  and resources, including available support from responsible relatives, that does not exceed the amounts set forth in  paragraph  (a) of  subdivision  two of this section, and is (i) sixty-five years of age or older, or certified blind or certified disabled or (ii)  for  reasons other  than  income  or  resources, is eligible for federal supplemental security income benefits and/or additional state payments.  (3) An individual who, although not  receiving  public  assistance  or care  for his or her maintenance under other provisions of this chapter, has income, including available support from responsible relatives, that does not exceed the amounts set forth in paragraph  (a)  of  subdivision two  of  this  section, and is (i) under the age of twenty-one years, or (ii) a spouse of a cash public assistance recipient living with  him  or her and essential or necessary to his or her welfare and whose needs are taken into account in determining the amount of his or her cash payment, or  (iii)  for  reasons  other  than  income, would meet the eligibility requirements of the aid to dependent children program as it  existed  on the sixteenth day of July, nineteen hundred ninety-six.  (4)  A  child  in  foster  care,  or a child described in section four hundred fifty-four or four hundred fifty-eight-d of this chapter.  (5) A disabled individual at least sixteen years of age, but under the age of sixty-five,  who:  would  be  eligible  for  benefits  under  the supplemental  security  income program but for earnings in excess of the allowable limit; has net available  income  that  does  not  exceed  two hundred  fifty percent of the applicable federal income official poverty line, as defined and updated by the United States department  of  health and human services, for a one-person or two-person household, as defined by  the  commissioner in regulation; has household resources, as defined in paragraph (e) of subdivision two of section three hundred sixty-six-c of this title, other than retirement accounts, that do not exceed twenty thousand dollars for a one-person household or thirty  thousand  dollars for   a   two-person  household,  as  defined  by  the  commissioner  in regulation; and contributes to the cost of medical  assistance  provided pursuant  to  this subparagraph in accordance with subdivision twelve of section three hundred sixty-seven-a of this title; for purposes of  this subparagraph,  disabled means having a medically determinable impairment of sufficient severity  and  duration  to  qualify  for  benefits  under section 1902(a)(10)(A)(ii)(xv) of the social security act.  (6)  An individual at least sixteen years of age, but under the age of sixty-five, who: is  employed;  ceases  to  be  in  receipt  of  medical assistance under subparagraph five of this paragraph because the person, by  reason  of  medical  improvement,  is  determined  at  the time of a regularly  scheduled  continuing  disability  review  to  no  longer  be eligible for supplemental security income program benefits or disability insurance  benefits  under  the social security act; continues to have a severe medically determinable impairment, to be determined in accordance with applicable federal regulations; and  contributes  to  the  cost  of medical  assistance provided pursuant to this subparagraph in accordance with subdivision twelve of section three hundred sixty-seven-a  of  this title;  for  purposes of this subparagraph, a person is considered to be employed if the person is earning at least the applicable  minimum  wage under section six of the federal fair labor standards act and working at least forty hours per month; or  (7)  An  individual  receiving treatment for breast or cervical cancer who meets the eligibility requirements of paragraph (d)  of  subdivision four  of  this  section  or  the presumptive eligibility requirements of subdivision five of section three hundred sixty-four-i of this title.  (8) An individual receiving treatment for colon or prostate cancer who meets the eligibility requirements of paragraph (e) of subdivision  four of   this   section  or  the  presumptive  eligibility  requirements  of subdivision five of section three hundred sixty-four-i of this title.  (9) An individual who:  (i) is under twenty-six years of age; and  (ii) was in foster care under the responsibility of the state  on  his or her eighteenth birthday; and  (iii)  was  in receipt of medical assistance under this title while in foster care; and  (iv) is not otherwise  eligible  for  medical  assistance  under  this title.  (10)  A  resident  of  a home for adults operated by a social services district, or a residential care center for adults or community residence operated or certified by the office  of  mental  health,  and  has  not, according to criteria promulgated by the department consistent with this title, sufficient income, or in the case of a person sixty-five years of age  or older, certified blind, or certified disabled, sufficient income and resources, including available support from  responsible  relatives, to  meet  all  the costs of required medical care and services available under this title.  (d) Conditions of eligibility. A person  shall  not  be  eligible  for medical assistance under this title unless he or she:  (1)  is  a  resident of the state, or, while temporarily in the state, requires immediate  medical  care  which  is  not  otherwise  available, provided  that  such  person  did not enter the state for the purpose of obtaining such medical care; and  (2) assigns to the appropriate social  services  official  or  to  the department,  in accordance with department regulations: (i) any benefits which are available to him or her individually from any third party  for care  or other medical benefits available under this title and which are otherwise assignable pursuant to a contract or any agreement  with  such third  party;  or  (ii)  any  rights,  of the individual or of any other person who is eligible for medical assistance under this  title  and  on whose  behalf  the  individual  has  the  legal  authority to execute an assignment of such rights, to  support  specified  as  support  for  the purpose of medical care by a court or administrative order; and  (3)  cooperates  with  the appropriate social services official or the department in establishing paternity or in establishing,  modifying,  or enforcing  a  support  order with respect to his or her child; provided, however, that nothing herein contained shall be construed to  require  a payment  under this title for care or services, the cost of which may be met in whole or in part by a third party; notwithstanding the foregoing, a social services official shall not require  such  cooperation  if  the social  services official or the department determines that such actions would be detrimental to the best interest of the  child,  applicant,  or recipient, or with respect to pregnant women during pregnancy and during the  sixty-day  period  beginning  on  the  last  day  of  pregnancy, in accordance with procedures and criteria established  by  regulations  of the department consistent with federal law; 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  (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  the  mentally retarded 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; or (v) is a person residing in a community residence or a residential care center for adults.  (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 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.   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, was  in receipt of medical assistance pursuant to this title immediately prior to being admitted to  such  facility,  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 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,  such  person  shall continue  to  be  eligible  for  receipt of medical assistance furnished pursuant to this title until such time as the person is determined to no longer be eligible  for  receipt  of  such  assistance.  To  the  extent  permitted  by  federal  law,  the  time  during  which such person is an incarcerated individual shall not be included in any calculation of when the person must recertify his or her eligibility for medical  assistance in accordance with this article. The state may seek federal authority to provide  medical  assistance for transitional services including but not limited to medical, prescription, and  care  coordination  services  for high  needs  incarcerated  individuals  in  state and local correctional facilities during the thirty days prior to release.   1-b. Notwithstanding any other provision of law, in the event  that  a person  who  is  an  inpatient in an institution for mental diseases, as defined by federal law and  regulations,  and  who  was  in  receipt  of medical  assistance  pursuant  to  this title immediately prior to being admitted to such facility, or who was directly admitted to such facility after being an inpatient in another institution for mental diseases  and who  was  in  receipt  of  medical assistance prior to admission to such transferring institution, such person shall remain eligible for  medical assistance  while an inpatient in such facility; provided, however, that no medical assistance shall be furnished pursuant to this title for  any care, services, or supplies provided during the time that such person is an  inpatient, except to the extent that federal financial participation is available for the costs of such care,  services,  or  supplies.  Upon release  from  such  facility, such person shall continue to be eligible for receipt of medical assistance furnished pursuant to this title until such time as the person is determined  to  no  longer  be  eligible  for receipt  of such assistance. To the extent permitted by federal law, the time during which such person is an  inpatient  in  an  institution  for mental  diseases  shall  not  be included in any calculation of when the person must recertify his or her eligibility for medical  assistance  in accordance with this article.   2.  (a)  The  following income and resources shall be exempt and shall not be taken into consideration in determining  a  person's  eligibility for medical care, services and supplies available under this title:  (1)  (i)  for  applications  for medical assistance filed on or before December thirty-first, two thousand five, a homestead which is essential and appropriate to the needs of the household;  (ii) for applications for medical assistance filed on or after January first, two thousand six, a homestead which is essential and  appropriate to  the  needs  of the household; provided, however, that in determining eligibility of an individual for medical assistance for nursing facility services and other long term care services, the individual shall not  be eligible  for such assistance if the individual's equity interest in the homestead  exceeds  seven  hundred  fifty  thousand  dollars;   provided further,  that  the  dollar  amount  specified  in  this clause shall be increased, beginning with the year two thousand  eleven,  from  year  to year,  in  an  amount  to  be determined by the secretary of the federal department of  health  and  human  services,  based  on  the  percentage increase in the consumer price index for all urban consumers, rounded to the  nearest  one thousand dollars. If such secretary does not determine such an amount, the department of  health  shall  increase  such  dollar amount  based  on  such increase in the consumer price index. Nothing in this clause shall be construed as preventing an individual from using  a reverse  mortgage  or  home equity loan to reduce the individual's total equity interest in the homestead. The home equity limitation established by this clause shall be waived in the case of a  demonstrated  hardship, as  determined  pursuant  to criteria established by such secretary. The home equity limitation shall not apply if one or more of  the  following persons  is  lawfully  residing  in  the individual's homestead: (A) the spouse of the individual; or (B) the individual's child who is under the  age of twenty-one, or is blind or permanently and totally  disabled,  as defined in section 1614 of the federal social security act.  (2) essential personal property;  (3)  a  burial fund, to the extent allowed as an exempt resource under the cash assistance program to  which  the  applicant  is  most  closely related;  (4)  savings  in  amounts  equal  to  one hundred fifty percent of the income amount permitted under  subparagraph  seven  of  this  paragraph, provided,  however,  that  the amounts for one and two person households shall not  be  less  than  the  amounts  permitted  to  be  retained  by households  of  the same size in order to qualify for benefits under the federal supplemental security income program;  (5) (i) such income  as  is  disregarded  or  exempt  under  the  cash assistance  program  to  which the applicant is most closely related for purposes of this subparagraph, cash assistance program means either  the aid  to dependent children program as it existed on the sixteenth day of July, nineteen hundred ninety-six, or the supplemental  security  income program; and  (ii)  such  income  of  a  disabled person (as such term is defined in section 1614(a)(3) of the federal social security act (42 U.S.C. section 1382c(a)(3)) or in  accordance  with  any  other  rules  or  regulations established by the social security administration), that is deposited in trusts  as  defined in clause (iii) of subparagraph two of paragraph (b) of this subdivision in the same calendar month within which said  income is received;  (6) health insurance premiums;  (7)  income  based  on  the  number  of  family members in the medical assistance household, as defined  in  regulations  by  the  commissioner consistent  with  federal  regulations  under  title  XIX of the federal social security act and calculated as follows:  (i) The amounts for one and two person households and  families  shall be  equal  to  twelve times the standard of monthly need for determining eligibility for and the amount of additional state  payments  for  aged, blind  and disabled persons pursuant to section two hundred nine of this article rounded up to the next highest one hundred dollars for  eligible individuals and couples living alone, respectively.  (ii)  The  amounts for households of three or more shall be calculated by increasing the income standard for a household  of  two,  established pursuant to clause (i) of this subparagraph, by fifteen percent for each additional household member above two, such that the income standard for a  three-person  household  shall  be one hundred fifteen percent of the income standard for a two-person household, the income  standard  for  a four-person  household shall be one hundred thirty percent of the income standard for a two-person household, and so on.  (iii)  No  other  income  or  resources,  including  federal  old-age, survivors  and disability insurance, state disability insurance or other payroll deductions, whether mandatory or optional, shall be  exempt  and all  other  income  and  resources shall be taken into consideration and required to be applied toward the payment or partial payment of the cost of medical care and services available under this title, to  the  extent permitted by federal law.  (9)   Subject   to   subparagraph  eight,  the  department,  upon  the application of a local social services  district,  after  passage  of  a resolution  by  the local legislative body authorizing such application, may adjust the income exemption based upon the variations  between  cost of  shelter  in urban areas and rural areas in accordance with standards prescribed by the United  States  secretary  of  health,  education  and welfare.  (10)  (i)  A person who is receiving or is eligible to receive federal supplemental security income payments and/or additional  state  payments is entitled to a personal needs allowance as follows:  (A)  for  the  personal expenses of a resident of a residential health care facility, as defined by section twenty-eight  hundred  one  of  the public health law, the amount of fifty-five dollars per month;  (B)  for  the  personal expenses of a resident of an intermediate care facility  operated  or  licensed  by  the   office   for   people   with developmental  disabilities  or  a patient of a hospital operated by the office of mental health, as defined by subdivision ten of  section  1.03 of the mental hygiene law, the amount of thirty-five dollars per month.  (ii)  A person who neither receives nor is eligible to receive federal supplemental security income payments and/or additional  state  payments is entitled to a personal needs allowance as follows:  (A)  for  the  personal expenses of a resident of a residential health care facility, as defined by section twenty-eight  hundred  one  of  the public health law, the amount of fifty dollars per month;  (B)  for  the  personal expenses of a resident of an intermediate care facility  operated  or  licensed  by  the   office   for   people   with developmental  disabilities  or  a patient of a hospital operated by the office of mental health, as defined by subdivision ten of  section  1.03 of the mental hygiene law, the amount of thirty-five dollars per month.  (iii)  Notwithstanding  the provisions of clauses (i) and (ii) of this subparagraph, the personal needs allowance for a person who is a veteran having neither a spouse nor a child, or a surviving spouse of a  veteran having  no  child,  who  receives  a  reduced  pension  from the federal veterans administration, and who is a resident of a nursing facility, as defined in section 1919 of the federal social  security  act,  shall  be equal  to  such  reduced  monthly  pension  but  shall not exceed ninety dollars per month.  (11) subject to the availability of federal  financial  participation, any  amount,  including earnings thereon, in a qualified NY ABLE account as established pursuant to article eighty-four  of  the  mental  hygiene law, any contributions to such NY ABLE account, and any distribution for qualified  disability expenses from such account; provided however, that such exemption shall be consistent with section  529A  of  the  Internal Revenue Code of 1986, as amended.   *  (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 ù(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 ù(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 through  the  end  of  the  month  in  which  the sixtieth  day  following the end of the pregnancy occurs, without regard to any change in the income of the family  that  includes  the  pregnant woman,  even if such change otherwise would have rendered her ineligible for medical assistance.  (2) A child born  to  a  woman  eligible  for  and  receiving  medical assistance  on  the  date  of  the child's birth shall be deemed to have applied for medical assistance and to have been found eligible for  such assistance  on  the  date  of such birth and to remain eligible for such assistance for a period of one year, so long as the child is a member of  the woman's household and the woman remains eligible for such assistance or would remain eligible for such assistance if she were pregnant.  (3)  A  child under the age of nineteen who is determined eligible for medical  assistance  under  the  provisions  of  this  section,   shall, consistent  with  applicable  federal  requirements, remain eligible for such assistance until the earlier of:  (i) the last day of the month which is  twelve  months  following  the determination or redetermination of eligibility for such assistance; or  (ii)  the  last day of the month in which the child reaches the age of nineteen.  (4) An infant eligible under subparagraph two or four of paragraph (b) of subdivision one of this section who is receiving medically  necessary in-patient services for which medical assistance is provided on the date the  child attains one year of age, and who, but for attaining such age, would remain eligible for medical assistance  under  such  subparagraph, shall  continue  to  remain eligible until the end of the stay for which in-patient services are being furnished.  (5) A child eligible under subparagraph  three  of  paragraph  (b)  of subdivision  one  of  this  section who is receiving medically necessary in-patient services for which medical assistance is provided on the date the child attains nineteen years of age, and who, but for attaining such age, would remain eligible for medical assistance under this  paragraph, shall  continue  to  remain eligible until the end of the stay for which in-patient services are being furnished.  (6) A woman who was pregnant while in receipt  of  medical  assistance who subsequently loses her eligibility for medical assistance shall have her  eligibility  for  medical  assistance  continued  for  a  period of twenty-four months from the end of the month in which the  sixtieth  day following  the end of her pregnancy occurs, but only for Federal Title X services which are eligible for reimbursement by the federal  government at a rate of ninety percent; provided, however, that such ninety percent limitation   shall  not  apply  to  those  services  identified  by  the commissioner as services, including treatment for  sexually  transmitted diseases,  generally performed as part of or as a follow-up to a service eligible for such ninety percent reimbursement;  and  provided  further, however,  that  nothing  in  this  paragraph  shall  be deemed to affect payment for such Title X services if federal financial participation  is not available for such care, services and supplies.  (c)   Continuous   coverage  for  adults.  Notwithstanding  any  other provision of law, a person whose eligibility for medical  assistance  is based  on  the  modified  adjusted  gross  income  of  the person or the person's household, and who loses eligibility for such assistance for  a reason  other  than  citizenship  status,  lack  of  state residence, or failure to provide a valid social security number, before the end  of  a twelve  month  period  beginning  on  the effective date of the person's initial eligibility for such assistance, or before the end of  a  twelve month  period  beginning  on the date of any subsequent determination of eligibility based on modified adjusted gross income, shall have  his  or her  eligibility  for  such  assistance  continued until the end of such twelve month period, provided that federal  financial  participation  in the costs of such assistance is available.  (d) Breast and cervical cancer treatment.  (1)  Persons  who  are  not  eligible for medical assistance under the terms of section 1902(a)(10)(A)(i) of the federal  social  security  act are  eligible  for  medical  assistance coverage during the treatment of breast or cervical cancer, subject to the provisions of this paragraph.  (2) (i) Medical  assistance  is  available  under  this  paragraph  to persons  who  are  under sixty-five years of age, have been screened for  breast and/or cervical cancer under the Centers for Disease Control  and Prevention  breast  and cervical cancer early detection program and need treatment for breast or cervical cancer, and are not  otherwise  covered under  creditable  coverage  as  defined  in  the  federal public health service act; provided however that medical assistance shall be furnished pursuant to this clause only to the extent permitted under federal  law, if,   for  so  long  as,  and  to  the  extent  that  federal  financial participation is available therefor.  (ii) Medical assistance is available under this paragraph  to  persons who  meet  the  requirements  of clause (i) of this subparagraph but for their age and/or gender,  who  have  been  screened  for  breast  and/or cervical  cancer  under  the program described in title one-A of article twenty-four of the public health law and need treatment  for  breast  or cervical cancer, and are not otherwise covered under creditable coverage as  defined  in  the federal public health service act; provided however that medical assistance shall be furnished pursuant to this clause  only if  and for so long as the provisions of clause (i) of this subparagraph are in effect.  (3) Medical assistance provided to a person under this paragraph shall be limited to the period in which such  person  requires  treatment  for breast or cervical cancer.  (4)  (i)  The commissioner of health shall promulgate such regulations as may be necessary to carry out the provisions of this paragraph.  Such regulations   shall   include,   but  not  be  limited  to:  eligibility requirements; a description of the medical services which  are  covered; and  a  process  for  providing presumptive eligibility when a qualified entity, as defined by the  commissioner,  determines  on  the  basis  of preliminary  information  that  a  person  meets  the  requirements  for eligibility under this paragraph.  (ii) For purposes of determining eligibility  for  medical  assistance under  this  paragraph, resources available to such individual shall not be considered nor required to be applied  toward  the  payment  or  part payment  of  the  cost  of medical care, services and supplies available under this paragraph.  (iii) An individual shall be eligible for presumptive eligibility  for medical  assistance  under this paragraph in accordance with subdivision five of section three hundred sixty-four-i of this title.  (5) The commissioner of health shall, consistent with this title, make any necessary amendments  to  the  state  plan  for  medical  assistance submitted pursuant to section three hundred sixty-three-a of this title, in order to ensure federal financial participation in expenditures under this  paragraph.  Notwithstanding  any provision of law to the contrary, the provisions of clause (i) of subparagraph two of this paragraph shall be effective only if and for so long as federal financial  participation is available in the costs of medical assistance furnished thereunder.  (e) Colon and prostate cancer treatment.  (1)  Notwithstanding  any  other  provision  of law to the contrary, a person who has been screened or referred  for  screening  for  colon  or prostate   cancer   by   the   cancer  services  screening  program,  as administered by the department of health, and has  been  diagnosed  with colon  or  prostate  cancer  is  eligible for medical assistance for the duration of his or her treatment for such cancer.  (2) Persons eligible for medical assistance under this paragraph shall have an income of two hundred fifty percent or less  of  the  comparable federal  income official poverty line as defined and annually revised by the federal office of management and budget.  (3) An individual shall be eligible for  presumptive  eligibility  for medical  assistance  under this paragraph in accordance with subdivision five of section three hundred sixty-four-i of this title.  (4)  Medical  assistance  is available under this paragraph to persons who are under sixty-five years of age, and  are  not  otherwise  covered under  creditable  coverage  as  defined  in  the  federal Public Health Service Act.   5. (a) In determining the initial or  continuing  eligibility  of  any person  for  assistance under this title, there shall be included in the amount  of  resources  considered   available   to   such   person   the uncompensated  value  of  any  resource transferred prior to the date of application for medical assistance as specified in paragraphs (b),  (c), (d) and (e) of this subdivision, and such person shall be ineligible for such  assistance  for  such  period  or  periods  as  specified  in this subdivision.  (b) For transfers made on  or  after  April  tenth,  nineteen  hundred eighty-two and prior to October first, nineteen hundred eighty-nine:  (1)  a nonexempt resource shall mean any resource which if retained by such person would not be exempt from consideration under the  provisions of subdivision two of this section;  (2)  any  transfer  of  a  nonexempt  resource made within twenty-four months  prior  to  the  date  of  a  person's  application  for  medical assistance  shall  be  presumed  to  have  been  made for the purpose of qualifying for  such  assistance;  however,  if  such  person  furnishes evidence  to  establish that the transfer was exclusively for some other purpose, the uncompensated value shall not be  considered  available  to such  person  in determining his or her initial or continued eligibility for medical assistance;  (3) the uncompensated value of any such resource  shall  be  the  fair market  value of such resource at the time of transfer, minus the amount of the compensation received by the person in exchange for the resource;  (4) any person determined to have excess resources of twelve  thousand dollars  or  less  because  of  the  application of this paragraph shall remain ineligible for assistance  under  this  title  for  a  period  of twenty-four  months  from the date of the transfer, or until such person can demonstrate that he or she has incurred medical expenses  after  the date  of transfer in the amount of such excess above otherwise allowable resources, whichever period is shorter;  (5) any person determined to have excess resources of more than twelve thousand dollars because of the  application  of  this  paragraph  shall remain  ineligible  for  assistance  under this title for a period which exceeds twenty-four months, which period shall be determined  by  adding an  additional  month  of ineligibility for each two thousand dollars in excess of twelve thousand dollars, or until such person can  demonstrate that  he or she has incurred medical expenses after the date of transfer in the amount  of  such  excess  above  otherwise  allowable  resources, whichever period is shorter.  (c)  For  transfers  made  on or after October first, nineteen hundred eighty-nine:  (1)  (i)  "institutionalized  person"  means  any  person  who  is  an in-patient  in  a nursing facility, or who is an in-patient in a medical facility and is  receiving  a  level  of  care  provided  in  a  nursing facility,  or  who is receiving care, services or supplies pursuant to a waiver pursuant to subsection (c) of section nineteen hundred fifteen of the federal social security act.  (ii) "resources" includes any resources which would not be  considered exempt  from  consideration  under  the provisions of subdivision two of  this  section,  without  regard  to  the  exemption  provided   for   in subparagraph one of paragraph (a) of such subdivision.  (iii)  "nursing  facility"  means a nursing home as defined by section twenty-eight hundred one of the public health law.  (iv) "nursing facility services" means nursing care and health related services provided in a nursing facility, a level of care provided  in  a hospital  which is equivalent to the care which is provided in a nursing facility and care, services or supplies provided pursuant  to  a  waiver pursuant  to  subsection  (c) of section nineteen hundred fifteen of the federal social security act.  (2) the uncompensated value of a resource shall  be  the  fair  market value  of such resource at the time of transfer, minus the amount of the compensation received in exchange for the resource.  (3) any transfer of a resource by a person or such person's spouse for less than fair market value made  within  or  after  the  thirty  months immediately  preceding  the date the person becomes an institutionalized person or the date  of  application  for  medical  assistance  while  an institutionalized  person,  if later, shall render the person ineligible for nursing facility services for a  period  specified  in  subparagraph four  of  this paragraph; however, an institutionalized person shall not be ineligible for nursing facility services solely by reason of any such transfer to the extent that:  (i) the resource transferred was a home and  title  to  the  home  was transferred  to:  (A)  the spouse of such person; or (B) a child of such person who is under the age of twenty-one years or  certified  blind  or certified  permanently  and  totally disabled, as defined by section two hundred eight of this title; or (C) a sibling of such person who has  an equity  interest  in such home and who resided in such home for a period of at least one year immediately before the date the  person  became  an institutionalized  person;  or  (D) a son or daughter of such person who was residing in such home for a period of at least two years immediately before the date such person became an institutionalized person, and  who provided  care  to  such person which permitted such person to reside at home rather than in an institution or facility; or  (ii) the resource was transferred to or for the sole benefit  of  such person's spouse, or from such person's spouse to or for the sole benefit of  such  person,  or  to  his  or  her  child who is certified blind or certified permanently and totally disabled; or  (iii) a satisfactory showing is made that:  (A)  the  person  or  such person's  spouse  intended  to  dispose  of  the resource either at fair market value, or for other valuable consideration, or (B)  the  resource was  transferred  exclusively  for  a  purpose other than to qualify for medical assistance; or  (iv) denial of eligibility would work an undue hardship, as defined by the commissioner which definition shall include  the  inability  of  the institutionalized  person  or  such  person's  spouse  to  retrieve  the resource or to obtain fair market value therefor despite his or her best efforts.  (4) Any transfer made  by  a  person  or  the  person's  spouse  under subparagraph  three  of  this  paragraph  shall  cause  the person to be ineligible for nursing facility services, for services  at  a  level  of care  equivalent  to that of nursing facility services for the lesser of (i) a period of thirty months from the  date  of  transfer,  or  (ii)  a period  equal  to  the  total  uncompensated  value  of the resources so transferred, divided by the average cost of nursing facility services to a private patient for a given period of time at the time of  application as determined by the commissioner. For purposes of this subparagraph the average  cost  of  nursing  facility services to a private patient for a  given period of time at the time of application shall be presumed to  be one  hundred  twenty  percent  of the average medical assistance rate of payment as of the  first  day  of  January  of  each  year  for  nursing facilities within the region as established pursuant to paragraph (b) of subdivision  sixteen  of  section  twenty-eight  hundred  seven-c of the public health law wherein the applicant resides.  (d)  For  transfers  made  after  August   tenth,   nineteen   hundred ninety-three:  (1)  (i)  "assets" means all income and resources of an individual and of the individual's spouse, including income or resources to  which  the individual  or  the  individual's  spouse  is entitled but which are not received because of  action  by:  the  individual  or  the  individual's spouse; a person with legal authority to act in place of or on behalf of the  individual  or  the  individual's  spouse;  a  person acting at the direction or upon the request of  the  individual  or  the  individual's spouse; or by a court or administrative body with legal authority to act in place of or on behalf of the individual or the individual's spouse or at  the  direction  or  upon  the  request  of  the  individual  or  the individual's spouse.  (ii) "blind" has the same  meaning  given  to  such  term  in  section 1614(a)(2) of the federal social social security act.  (iii)  "disabled"  has  the same meaning given to such term in section 1614(a)(3) of the federal social security act.  (iv) "income" has the same meaning given to such term in section  1612 of the federal social security act.  (v)  "resources"  has  the  same meaning given to such term in section 1613 of the federal social security act, without regard, in the case  of an  institutionalized  individual,  to  the  exclusion  provided  for in subsection (a)(1) of such section.  (vi) "look-back period" means the thirty-six month period, or, in  the case  of  payments from a trust or portions of a trust which are treated as  assets  disposed  of  by  the  individual  pursuant  to   department regulations, the sixty-month period, immediately preceding the date that an  institutionalized  individual  is  both  institutionalized  and  has applied for medical assistance.  (vii) "institutionalized individual" means any individual  who  is  an in-patient  in  a  nursing  facility,  including  an  intermediate  care facility for the mentally retarded, or who is an in-patient in a medical facility and is  receiving  a  level  of  care  provided  in  a  nursing facility,  or  who is receiving care, services or supplies pursuant to a waiver granted pursuant to subsection (c) of section 1915 of the federal social security act.  (viii) "intermediate care facility for the mentally retarded" means  a facility  certified  under article sixteen of the mental hygiene law and which  has  a  valid  agreement  with  the  department   for   providing intermediate care facility services and receiving payment therefor under title XIX of the federal social security act.  (ix)  "nursing  facility"  means  a nursing home as defined by section twenty-eight hundred one of the public health law  and  an  intermediate care facility for the mentally retarded.  (x)  "nursing facility services" means nursing care and health related services provided in a nursing facility; a level of care provided  in  a hospital  which is equivalent to the care which is provided in a nursing facility; and care, services or supplies provided pursuant to  a  waiver granted pursuant to subsection (c) of section 1915 of the federal social security act.  (2)  The  uncompensated  value of an asset is the fair market value of such asset at the time of transfer, minus the amount of the compensation received in exchange for the asset.  (3)   In   determining   the  medical  assistance  eligibility  of  an institutionalized individual, any transfer of an asset by the individual or the individual's spouse for less than fair market value  made  within or after the look-back period shall render the individual ineligible for nursing   facility   services  for  the  period  of  time  specified  in subparagraph four of this paragraph. Notwithstanding the  provisions  of this  subparagraph,  an  individual shall not be ineligible for services solely by reason of any such transfer to the extent that:  (i)  in  the  case  of  an  institutionalized  individual,  the  asset transferred  was a home and title to the home as transferred to: (A) the spouse of the individual; or (B) a child of the individual who is  under the  age  of  twenty-one years or blind or disabled; or (C) a sibling of the individual who has an equity interest in such home and  who  resided in  such  home  for a period of at least one year immediately before the date the individual became an institutionalized  individual;  or  (D)  a child of the individual who was residing in such home for a period of at least  two  years  immediately  before the date the individual became an institutionalized individual, and who provided care  to  the  individual which  permitted  the  individual  to  reside  at home rather than in an institution or facility; or  (ii) the assets: (A) were transferred to the individual's  spouse,  or to  another for the sole benefit of the individual's spouse; or (B) were transferred from the individual's spouse to another for the sole benefit of the individual's spouse; or (C) were transferred to the  individual's child who is blind or disabled, or to a trust established solely for the benefit  of  such  child; or (D) were transferred to a trust established solely for the benefit of an individual under sixty-five  years  of  age who is disabled; or  (iii)  a  satisfactory showing is made that: (A) the individual or the individual's spouse intended to dispose of the  assets  either  at  fair market  value,  or  for  other valuable consideration; or (B) the assets were transferred exclusively for a purpose other  than  to  qualify  for medical  assistance;  or  (C)  all assets transferred for less than fair market value have been returned to the individual; or  (iv)  denial  of  eligibility  would  cause  an  undue  hardship,   as determined  pursuant  to the regulations of the department in accordance with criteria established by the secretary of the federal department  of health and human services.  (4)  Any  transfer  made  by  an individual or the individual's spouse under subparagraph three of this paragraph shall cause the person to  be ineligible  for  services  for  a  period equal to the total, cumulative uncompensated value of  all  assets  transferred  during  or  after  the look-back  period,  divided  by  the  average  monthly  costs of nursing facility services provided to a private patient for a  given  period  of time  at  the  time  of  application,  as  determined  pursuant  to  the regulations of the department. The period of ineligibility  shall  begin with  the first day of the first month during or after which assets have been transferred for less than fair market value,  and  which  does  not occur  in  any  other periods of ineligibility under this paragraph. For purposes of this subparagraph, the  average  monthly  costs  of  nursing facility services to a private patient for a given period of time at the time  of  application shall be presumed to be one hundred twenty percent of the average medical assistance rate of payment as of the first day of January of each year for nursing facilities within  the  region  wherein the  applicant  resides,  as  established  pursuant  to paragraph (b) of  subdivision sixteen of  section  twenty-eight  hundred  seven-c  of  the public health law.  (5)  In  the  case  of  an  asset held by an individual in common with another person or persons in a joint  tenancy,  tenancy  in  common,  or similar  arrangement,  the  asset, or the affected portion of the asset, shall be considered to be transferred by such individual when any action is taken, either by such individual or by any other person, that reduces or eliminates such individual's ownership or control of such asset.  (6) In  the  case  of  a  trust  established  by  the  individual,  as determined  pursuant  to the regulations of the department, any payment, other than a payment to or for the benefit of  the  individual,  from  a revocable  trust  is  considered  to  be  a  transfer  of  assets by the individual and any payment, other than to or  for  the  benefit  of  the individual,  from  the  portion of an irrevocable trust which, under any circumstance, could be made available to the individual is considered to be a transfer of assets by the individual and, further, the value of any portion of an irrevocable trust from which no payment could be  made  to the individual under any circumstances is considered to be a transfer of assets  by the individual for purposes of this section as of the date of establishment of the trust, or, if later, the date on which  payment  to the individual is foreclosed.  (e) For transfers made on or after February eighth, two thousand six:  (1)(i) "assets" means all income and resources of an individual and of the  individual's  spouse,  including  income and resources to which the individual or the individual's spouse is  entitled  but  which  are  not received  because  of  action  by:  the  individual  or the individual's spouse; a person with legal authority to act in place of or on behalf of the individual or the  individual's  spouse;  a  person  acting  at  the direction  or  upon  the  request  of the individual or the individual's spouse; or by a court or administrative body with legal authority to act in place of or on behalf of the individual or the individual's spouse or at  the  direction  or  upon  the  request  of  the  individual  or  the individual's spouse;  (ii)  "blind"  has  the  same  meaning  given  to such term in section 1614(a)(2) of the federal social security act.  (iii) "disabled" has the same meaning given to such  term  in  section 1614(a)(3) of the federal social security act.  (iv)  "income" has the same meaning given to such term in section 1612 of the federal social security act.  (v) "resources" has the same meaning given to  such  term  in  section 1613 of the federal social security act, without regard to the exclusion provided for in subsection (a)(1) of such section.  (vi)  "look-back  period"  means  the  sixty-month  period immediately preceding  the  date  that  an  institutionalized  individual  is   both institutionalized and has applied for medical assistance, or in the case of  a non-institutionalized individual, subject to federal approval, the thirty-month  period  immediately   preceding   the   date   that   such non-institutionalized individual applies for medical assistance coverage of  long  term  care  services.  Nothing  herein  precludes  a review of eligibility for retroactive authorization for medical expenses  incurred during  the  three  months prior to the month of application for medical assistance.  (vii) "institutionalized individual" means any individual  who  is  an in-patient  in  a  nursing  facility,  including  an  intermediate  care facility for the mentally retarded, or who is an in-patient in a medical facility and is  receiving  a  level  of  care  provided  in  a  nursing facility,  or  who is described in section 1902(a)(10)(A)(ii)(VI) of the federal social security act.  (viii) "intermediate care facility for the mentally retarded" means  a facility  certified  under article sixteen of the mental hygiene law and which  has  a  valid  agreement  with  the  department   for   providing intermediate care facility services and receiving payment therefor under title XIX of the federal social security act.  (ix)  "nursing  facility"  means  a nursing home as defined by section twenty-eight hundred one of the public health law  and  an  intermediate care facility for the mentally retarded.  (x)  "nursing facility services" means nursing care and health related services provided in a nursing facility; a level of care provided  in  a hospital  which is equivalent to the care which is provided in a nursing facility; and care, services or supplies provided pursuant to  a  waiver granted pursuant to subsection (c) of section 1915 of the federal social security act 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 eighteen years of age or under;  (ii) be physically disabled, according  to  the  federal  supplemental security  income program criteria, including but not limited to a person who is multiply disabled;  (iii) 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, 2023   6-a. a. The commissioner of health shall apply for a nursing  facility transition  and diversion medicaid waiver pursuant to subdivision (c) of section nineteen hundred fifteen of the federal social security  act  in order  to  provide  home and community based services to individuals who would otherwise be cared for in a nursing  facility  and  who  would  be considered  to  be  part of an aggregate group of individuals who, taken together, will be cared for at less cost  in  the  community  than  they would  have  otherwise and to provide reimbursement for several home and community  based  services  not  presently  included  in   the   medical assistance  program.  The  initial application shall provide for no less than five thousand persons to be eligible to participate in  the  waiver spread over the first three years and continue to increase thereafter.   b.  A  person  eligible  for  participation  in  the  nursing facility transition and diversion medicaid waiver program shall:  (i) be at least eighteen years of age;  (ii) be eligible for and in receipt of medicaid authorization for long term care services, including nursing facility services;  (iii) have resided in a nursing facility and/or have been assessed and determined to require the level of care provided by a nursing facility;  (iv) be capable of residing in the community if provided with services specified  in  paragraph  f  of  this  subdivision, in addition to other services provided under this title,  as  determined  by  the  assessment required by paragraph d of this subdivision; and  (v) meet such other criteria as may be established by the commissioner of  health  as  may  be  necessary  to  administer the provision of this subdivision in an equitable manner.   c. The department of health shall develop such waiver  application  in conjunction   with  independent  living  centers,  representatives  from disability and senior groups and such other interested  parties  as  the department shall determine to be appropriate.   d.  The  commissioner  of  health  shall  contract with not-for-profit agencies around the state that have experience with providing  community based services to individuals with disabilities, hereinafter referred to as  regional  resource development specialists, who shall be responsible for  initial  contact  with  the  prospective  waiver  participant,  for assuring  the  waiver  candidates  have  choice  in  selecting a service coordinator and other providers, and for assessing applicants  including decisions for eligibility for participation in the waiver, which contain the  original  service  plan  and  all subsequent revised service plans. Regional resource  development  specialists  shall  be  responsible  for approving  service  plans  and  the  department  of health shall provide technical assistance and oversight.   e. Prior to the  person's  participation  in  the  waiver  program,  a service coordinator approved by the department of health shall undertake the  development of a written plan of care for the provision of services consistent with the level of care determined by an  initial  assessment, in  accordance  with criteria established by the commissioner of health. Such plans shall set forth the type of services  to  be  furnished,  the amount,  the  frequency  and  duration  of  each service and the type of providers to furnish each service.   f. Nursing facility transition and diversion  services  which  may  be provided  to  persons specified in paragraph b of this subdivision shall be established and defined as part of the waiver application development process specified in paragraph c of this subdivision  and  may  include: (i)  case  management  services;  (ii)  personal care; (iii) independent living skills training; (iv)  environmental  accessibility  adaptations; (v)  costs  of community transition services; (vi) assistive technology; (vii)  adult  day  health;  (viii)  staff  for  safety  assurance;  (ix) non-medical  support  services  needed  to  maintain  independence;  (x) respite services; and (xi) such other home and community based  services as  may be approved by the secretary of the federal department of health and human services.   g. The department of  health  shall  designate  who  may  provide  the nursing   facility  transition  and  diversion  services  identified  in paragraph f  of  this  subdivision,  subject  to  the  approval  of  the commissioner of health.   h.  Before  a  person may participate in the nursing transition waiver program specified in this subdivision, the regional resource development specialists shall determine that:  (i) the individual is at least eighteen years of age and eligible  for and  in  receipt  of medicaid authorization for long term care services, including nursing facility services; and  (ii) the individual resides in a  nursing  facility  and/or  has  been assessed and determined to require nursing facility care.   7.  a.  The  commissioner  of  health  shall  apply  for  a  home  and community-based waiver, pursuant to subdivision (c) of section  nineteen hundred  fifteen of the federal social security act, in order to provide home and community-based services not presently included in the  medical assistance program.   b. Persons eligible for participation in the waiver program shall:  (i) be eighteen years of age or under;  (ii)  have  a  developmental  disability,  as  such term is defined in subdivision twenty-two of section 1.03 of the mental hygiene law;  (iii) demonstrate complex health care needs, as defined in paragraph c of this subdivision;  (iv) require the level  of  care  provided  by  an  intermediate  care facility for the developmentally disabled;  (v)  not  be  hospitalized or receiving care in a nursing facility, an intermediate care facility for the developmentally disabled or any other institution;  (vi) be capable of being cared for in the community if  provided  with case  management  services,  respite  services, home adaptation, and any other home and community-based services, other than room and  board,  as may be approved by the secretary of the federal department of health and human services, in addition to other services provided under this title, as  determined  by  the  assessment  required  by  paragraph  f  of this subdivision;  (vii) be ineligible for medical  assistance  because  the  income  and resources  of  responsible relatives are deemed available to him or her, causing him or her to exceed the income or  resource  eligibility  level for such assistance;  (viii)  be  capable  of  being cared for at less cost in the community than in an intermediate care facility for the developmentally  disabled; and  (ix)   meet   such  other  criteria  as  may  be  established  by  the commissioner of health, in conjunction  with  the  commissioner  of  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 eighteen years of age;  (ii)  have  a  mental  illness, as such term is defined in subdivision twenty of section 1.03 of the mental hygiene law;  (iii) demonstrate complex health  or  mental  health  care  needs,  as defined in paragraph d of this subdivision;  (iv)  require  the  level of care provided by a hospital as defined in subdivision ten of section 1.03 of the mental hygiene law which provides intermediate or long-term care and treatment, or  within  the  past  six months  have  been hospitalized for at least thirty consecutive days, or have resided in  such  a  hospital  for  at  least  one  hundred  eighty consecutive days;  (v)  be  capable  of being cared for in the community if provided with case  management  services,  clinical  interventions,  crisis  services, social  training, rehabilitation services, counseling, respite services, medication    therapy,    partial     hospitalization,     environmental modifications,  educational  and related services, and/or medical social services, in addition to other services, as determined by the assessment required by paragraph g of this subdivision and included in the  written plan of care developed pursuant to paragraph h of this subdivision;  (vi)  be  eligible  or,  if  discharged, would be eligible for medical assistance, or are ineligible for medical assistance because the  income and  resources  of responsible relatives are or, if discharged, would be deemed available to such persons causing them to exceed  the  income  or resource eligibility level for such assistance;  (vii) be capable of being cared for at less cost in the community than in  a  hospital,  as  defined  in subdivision ten of section 1.03 of the mental hygiene law; and  (viii)  meet  such  other  criteria  as  may  be  established  by  the commissioner  of mental health, in conjunction with the commissioner, as may be necessary to administer the provisions of this subdivision in  an equitable  manner,  including  those  criteria  established  pursuant to paragraph e of this subdivision.   c. Persons eligible for inclusion in the general waiver shall meet all the requirements set  forth  in  subparagraphs  (i)  through  (viii)  of paragraph  b  of this subdivision; and shall be eligible for, shall have applied for, or shall reside in an institutional placement  including  a hospital  as  defined  in  subdivision ten of section 1.03 of the mental hygiene law which provides intermediate or long-term care and treatment.   d. For purposes of this subdivision, persons who "demonstrate  complex health  or  mental  health  care needs", shall be defined as persons who require medical or mental health therapies, care or treatments that  are designed  to  replace or compensate for a vital functional limitation or to avert an immediate threat to life;  that  is,  persons  who  rely  on mental  health  care, nursing care, monitoring, or prescribed medical or mental health therapy for the maintenance of  quality  of  life  over  a period expected to extend beyond twelve months.   e.  The  commissioner  of  mental  health,  in  conjunction  with  the commissioner,  shall  establish  selection  criteria  to   ensure   that participants  are  those  who  are most in need. Such selection criteria shall  include,  but  not  be  limited  to:  the  need   for   continued hospitalization  or  the  risk  of hospitalization; the financial burden imposed upon the family, or which would be imposed upon the family if an institutionalized participant were to be discharged, as a result of  the child's  health  or mental health care needs; and the level of stress or the anticipated level of stress  within  the  family  unit  due  to  the unrelieved burden of caring for the child at home.   f. Social services districts, in conjunction with the office of mental health  and  the  local governmental unit as defined in section 41.03 of the mental hygiene law, shall determine the eligibility  of  persons  in accordance   with   the  provisions  of  paragraphs  b  and  c  of  this subdivision, as well  as  the  selection  criteria  established  by  the commissioner  and  the  commissioner  of  mental  health  as required by paragraph e of this subdivision.   g.  The  commissioner  of  mental  health,  in  conjunction  with  the commissioner,  shall  designate  persons  to  undertake an assessment to determine the eligibility of persons under consideration  for  inclusion in  the  general  waiver.  Persons  designated by such commissioners may include the potentially eligible person's physician, a representative of the local governmental unit as defined in section 41.03  of  the  mental  hygiene  law,  a  representative of the appropriate hospital or regional office of the office of mental health, and such  other  persons  as  the commissioners deem appropriate. The assessment shall include, but not be limited  to,  an evaluation of the mental health, health, psycho-social, rehabilitation and environmental needs of the person, and shall serve as the basis for the development and provision of an  appropriate  plan  of care for such person.   h.  Prior to a person's inclusion in the general waiver, the office of mental health and the local governmental  unit  as  defined  in  section 41.03  of  the  mental  hygiene  law, shall undertake or arrange for the development of a written  plan  of  care,  including  identification  of service   providers   if   known,  for  the  provision  of  services  in consultation with the individual and their  family  whenever  clinically appropriate,  consistent  with  the  level  of  care  determined  by the assessment, in accordance with criteria established by the  commissioner of  mental  health, in consultation with the commissioner. If a provider of services is identified in a written plan of care, such provider shall be designated pursuant to paragraph j of this subdivision. Such plan  of care  shall  be  reviewed  by  such  commissioners  and  approved by the commissioner of  mental  health  prior  to  the  provision  of  services pursuant to the general waiver.   i.  Home and community-based services which may be provided to persons specified in paragraphs b and c of this subdivision shall,  in  addition to  those  services otherwise authorized, include but are not limited to (i) case management services; (ii) clinical interventions; (iii)  crisis services;  (iv)  social  training;  (v)  rehabilitation  services;  (vi) counseling; (vii) respite  services;  (viii)  medication  therapy;  (ix) partial   hospitalization;   (x)   environmental   modifications;   (xi) educational and related services; (xii)  medical  social  services;  and other  services  included in the written plan of care developed pursuant to paragraph h of this subdivision.   j. The office  of  mental  health,  in  conjunction  with  the  social services  district  and the local governmental unit, shall designate who may  provide  the  home  and  community-based  services  identified   in paragraph i of this subdivision.   k.   Notwithstanding   any   provision  of  this  chapter  other  than subdivision six or seven of this  section,  or  any  other  law  to  the contrary, for purposes of determining medical assistance eligibility for persons  specified in paragraphs b and c of this subdivision, the income and resources of a responsible relative shall not  be  deemed  available for  as  long  as  the  person  meets  the  criteria  specified  in this subdivision.   l. Before a person may participate in the general waiver specified  in paragraph  a  of  this subdivision, the social services district and the office of mental health shall  determine  that  there  is  a  reasonable expectation  that  the  annual  medical assistance expenditures for such person under the waiver would not exceed the expenditures for care in  a hospital,  as  defined  in subdivision ten of section 1.03 of the mental hygiene law, that would have been made had the waiver not been granted.   m. The commissioner, in conjunction with the  commissioner  of  mental health,  shall  review  the  expenditure  estimates determined by social services districts and  the  office  of  mental  health,  prior  to  the inclusion of any person in the general waiver.   n.  Within one year of federal waiver approval, and on an annual basis thereafter, until such time as the  waiver  is  fully  implemented,  the commissioner  of  mental  health,  in conjunction with the commissioner, shall report on the status of the general waiver to  the  governor,  the legislature,  including  the  respective  chairpersons of the senate and  assembly committees of mental  health  and  the  chairs  of  the  senate finance  and  assembly ways and means committees and the director of the division of the budget. Such report shall specify the number of children included  in  the waiver, the geographic distribution of those included, health and mental health profiles, utilization and costs of services  by region  including  costs avoided in residential treatment facilities and inpatient facilities operated by the office of mental health, the length of time the children  have  participated  in  the  waiver  and  regional information  on  the status of waiting lists for waiver services and for services in residential settings, where appropriate.  The  report  shall also  provide  follow-up information on children who have withdrawn from the waiver, including data on residential program placements.   o. This subdivision shall be effective if, and  as  long  as,  federal financial  participation  is  available  for expenditures incurred under this subdivision.   p. Nothing herein shall be  construed  to  create  an  entitlement  to services   under   the   approved  general  waiver  implemented  by  the commissioner in accordance with this subdivision.   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 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.   * NB Effective until January 1, 2022   * 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.   * NB Effective January 1, 2022   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.