2023 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.
* NB  Effective  until  January  1,  2023 subject to federal financial
participation
* (4) An individual who is a pregnant woman or is a member of a family
that contains a dependent child living with a parent or other  caretaker
relative  is  eligible  for  standard  coverage  if their MAGI household
income does not exceed one hundred thirty-three percent of  the  federal
poverty  line  for the applicable family size, which shall be calculated
in accordance with guidance issued by the Secretary of the United States
department  of  health  and  human  services;  for  purposes   of   this
subparagraph,  the  term  dependent  child  means  a person who is under
eighteen years of age, or is eighteen  years  of  age  and  a  full-time
student,  who  is  deprived of parental support or care by reason of the
death, continued absence, or physical or mental incapacity of a  parent,
or  by  reason  of  the  unemployment  of  the parent, as defined by the
department of health.
* NB  Effective  January  1,  2023  subject   to   federal   financial
participation
(5) A child who is under twenty-one years of age and who was in foster
care  under  the  responsibility  of  the state on his or her eighteenth
birthday  is  eligible  for  standard  coverage;   notwithstanding   any

provision  of  law  to the contrary, the provisions of this subparagraph
shall be effective  only  if  and  for  so  long  as  federal  financial
participation  is available in the costs of medical assistance furnished
hereunder.
(6) An individual who is not otherwise eligible for medical assistance
under  this section is eligible for coverage of family planning services
reimbursed by the federal government at a rate of  ninety  percent,  and
for  coverage of those services identified by the commissioner of health
as services generally performed as part  of  or  as  a  follow-up  to  a
service  eligible  for  such  ninety  percent  reimbursement,  including
treatment for sexually transmitted diseases, if his or her  income  does
not  exceed  the  MAGI-equivalent  of two hundred percent of the federal
poverty line for the applicable family size, which shall  be  calculated
in accordance with guidance issued by the secretary of the United States
department  of  health  and  human  services;  provided further that the
commissioner  of  health  is  authorized  to  establish   criteria   for
presumptive   eligibility   for   services  provided  pursuant  to  this
subparagraph in accordance with all applicable requirements  of  federal
law or regulation pertaining to such eligibility.
* (7)  A  child who is nineteen or twenty years of age living with his
or her parent will be eligible for standard coverage if the sum  of  the
MAGI-based income of every person included in the child's MAGI household
exceeds  one  hundred  thirty-three  percent,  but  does  not exceed one
hundred fifty percent, of the federal poverty line  for  the  applicable
family size.
* NB Repealed October 1, 2029
(7-a)  An  individual is eligible for benchmark coverage if his or her
MAGI household income exceeds one hundred thirty-three  percent  of  the
federal poverty line for the applicable family size and he or she:
(i)  was  eligible  or  would have been eligible for the family health
plus program without federal financial participation  in  the  costs  of
medical care and services under such program; and
(ii)  is  not  eligible  to  enroll in a qualified health plan offered
through the state health benefit exchange established  pursuant  to  the
federal  Patient  Protection  and Affordable Care Act (P.L. 111-148), as
amended by the federal Health Care and Education Reconciliation  Act  of
2010 (P.L. 111-152).
(c)  Non-MAGI eligibility groups. Individuals listed in this paragraph
are eligible  for  standard  coverage.  Where  a  financial  eligibility
determination  must  be  made  by  the  medical  assistance  program for
individuals  in  these  groups,  such  financial  eligibility  will   be
determined in accordance with subdivision two of this section.
(1)   An   individual   receiving   or  eligible  to  receive  federal
supplemental security income payments and/or additional  state  payments
pursuant  to  title  six  of this article; any inconsistent provision of
this chapter or other law notwithstanding, the department may  designate
the  office  of  temporary  and  disability  assistance  as its agent to
discharge its responsibility, or so much of  its  responsibility  as  is
permitted  by  federal  law,  for  determining  eligibility  for medical
assistance with respect to persons  who  are  not  eligible  to  receive
federal  supplemental  security  income payments but who are receiving a
state administered supplementary payment or mandatory minimum supplement
in accordance with the provisions of  subdivision  one  of  section  two
hundred twelve of this article.
(2)  An  individual  who,  although not receiving public assistance or
care for his or her maintenance under other provisions of this  chapter,
has  income  and resources, including available support from responsible
relatives, that does not exceed the amounts set forth in  paragraph  (a)

of  subdivision  two of this section, and is (i) sixty-five years of age
or older, or certified blind or certified disabled or (ii)  for  reasons
other  than  income  or  resources, is eligible for federal supplemental
security income benefits and/or additional state payments.
(3)  An  individual  who,  although not receiving public assistance or
care for his or her maintenance under other provisions of this  chapter,
has income, including available support from responsible relatives, that
does  not  exceed  the amounts set forth in paragraph (a) of subdivision
two of this section, and is (i) under the age of  twenty-one  years,  or
(ii)  a  spouse of a cash public assistance recipient living with him or
her and essential or necessary to his or her welfare and whose needs are
taken into account in determining the amount of his or her cash payment,
or (iii) for reasons other  than  income,  would  meet  the  eligibility
requirements  of  the aid to dependent children program as it existed on
the sixteenth day of July, nineteen hundred ninety-six.
(4) A child in foster care, or  a  child  described  in  section  four
hundred fifty-four or four hundred fifty-eight-d of this chapter.
(5) A disabled individual at least sixteen years of age, but under the
age  of  sixty-five,  who:  would  be  eligible  for  benefits under the
supplemental security income program but for earnings in excess  of  the
allowable  limit;  has  net  available  income  that does not exceed two
hundred fifty percent of the applicable federal income official  poverty
line,  as  defined and updated by the United States department of health
and human services, for a one-person or two-person household, as defined
by the commissioner in regulation; has household resources,  as  defined
in paragraph (e) of subdivision two of section three hundred sixty-six-c
of  this  title,  other than retirement accounts, that do not exceed one
hundred fifty percent of the income amount permitted under  subparagraph
seven  of  paragraph  (a)  of  subdivision  two  of  this section, for a
one-person or two-person household, as defined by  the  commissioner  in
regulation;  and  contributes to the cost of medical assistance provided
pursuant to this subparagraph in accordance with subdivision  twelve  of
section  three hundred sixty-seven-a of this title; for purposes of this
subparagraph, disabled means having a medically determinable  impairment
of  sufficient  severity  and  duration  to  qualify  for benefits under
section 1902(a)(10)(A)(ii)(xv) of the social security act.
(6) An individual at least sixteen years of age, but under the age  of
sixty-five,  who:  is  employed;  ceases  to  be  in  receipt of medical
assistance under subparagraph five of this paragraph because the person,
by reason of medical  improvement,  is  determined  at  the  time  of  a
regularly  scheduled  continuing  disability  review  to  no  longer  be
eligible for supplemental security income program benefits or disability
insurance benefits under the social security act; continues  to  have  a
severe medically determinable impairment, to be determined in accordance
with  applicable  federal  regulations;  and  contributes to the cost of
medical assistance provided pursuant to this subparagraph in  accordance
with  subdivision  twelve of section three hundred sixty-seven-a of this
title; for purposes of this subparagraph, a person is considered  to  be
employed  if  the person is earning at least the applicable minimum wage
under section six of the federal fair labor standards act and working at
least forty hours per month; or
(7) An individual receiving treatment for breast  or  cervical  cancer
who  meets  the eligibility requirements of paragraph (d) of subdivision
four of this section or  the  presumptive  eligibility  requirements  of
subdivision five of section three hundred sixty-four-i of this title.
(8) An individual receiving treatment for colon or prostate cancer who
meets  the eligibility requirements of paragraph (e) of subdivision four

of  this  section  or  the  presumptive  eligibility   requirements   of
subdivision five of section three hundred sixty-four-i of this title.
(9) An individual who:
(i) is under twenty-six years of age; and
(ii)  was  in foster care under the responsibility of the state on his
or her eighteenth birthday; and
(iii) was in receipt of medical assistance under this title  while  in
foster care; and
(iv)  is  not  otherwise  eligible  for  medical assistance under this
title.
(10) A resident of a home for adults operated  by  a  social  services
district, or a residential care center for adults or community residence
operated  or  certified  by  the  office  of mental health, and has not,
according to criteria promulgated by the department consistent with this
title, sufficient income, or in the case of a person sixty-five years of
age or older, certified blind, or certified disabled, sufficient  income
and  resources,  including available support from responsible relatives,
to meet all the costs of required medical care  and  services  available
under this title.
(d)  Conditions  of  eligibility.  A  person shall not be eligible for
medical assistance under this title unless he or she:
(1) is a resident of the state, or, while temporarily  in  the  state,
requires  immediate  medical  care  which  is  not  otherwise available,
provided that such person did not enter the state  for  the  purpose  of
obtaining such medical care; and
(2)  assigns  to  the  appropriate  social services official or to the
department, in accordance with department regulations: (i) any  benefits
which  are available to him or her individually from any third party for
care or other medical benefits available under this title and which  are
otherwise  assignable  pursuant to a contract or any agreement with such
third party; or (ii) any rights, of  the  individual  or  of  any  other
person  who  is  eligible for medical assistance under this title and on
whose behalf the individual  has  the  legal  authority  to  execute  an
assignment  of  such  rights,  to  support  specified as support for the
purpose of medical care by a court or administrative order; and
(3) cooperates with the appropriate social services  official  or  the
department  in  establishing paternity or in establishing, modifying, or
enforcing a support order with respect to his or  her  child;  provided,
however,  that  nothing herein contained shall be construed to require a
payment under this title for care or services, the cost of which may  be
met in whole or in part by a third party; notwithstanding the foregoing,
a  social  services  official  shall not require such cooperation if the
social services official or the department determines that such  actions
would  be  detrimental  to the best interest of the child, applicant, or
recipient, or with respect to pregnant women during pregnancy and during
the one  year  period  beginning  on  the  last  day  of  pregnancy,  in
accordance  with  procedures  and criteria established by regulations of
the department consistent with federal law; and
(4) applies for and utilizes group health insurance benefits available
through a current or former employer, including benefits  for  a  spouse
and  dependent  children,  in  accordance  with  the  regulations of the
department.
(e) Conditions of coverage. An otherwise eligible person shall not  be
entitled  to medical assistance coverage of care, services, and supplies
under this title while he or she:
(1) is an inmate or patient in  an  institution  or  facility  wherein
medical  assistance  may  not  be provided in accordance with applicable
federal  or  state  requirements,  except  for  persons   described   in

subparagraph  ten  of  paragraph  (c) of this subdivision or subdivision
one-a or subdivision one-b  of  this  section;  or  except  for  certain
services  provided  to persons in a correctional institution or facility
permitted  by  a  waiver  authorized  pursuant to section eleven hundred
fifteen of the federal social security act; if, so long as, and  to  the
extent   federal   financial   participation   is   available  for  such
expenditures provided pursuant to such waiver; or
(2) is a patient in a public institution operated  primarily  for  the
treatment  of  tuberculosis  or  care of the mentally disabled, with the
exception of: (i) a person sixty-five  years  of  age  or  older  and  a
patient in any such institution; (ii) a person under twenty-one years of
age   and   receiving   in-patient  psychiatric  services  in  a  public
institution operated primarily for the care of  the  mentally  disabled;
(iii)  a patient in a public institution operated primarily for the care
of individuals with developmental disabilities who is receiving  medical
care  or  treatment  in  that  part  of  such  institution that has been
approved pursuant to law as a hospital or nursing home; (iv)  a  patient
in  an  institution  operated by the state department of mental hygiene,
while under care in a hospital on release from such institution for  the
purpose  of receiving care in such hospital; (v) is a person residing in
a community residence or a residential care center for adults;  or  (vi)
certain  services  provided  to  persons  in  an  institution for mental
diseases permitted by a waiver authorized  pursuant  to  section  eleven
hundred  fifteen of the federal social security act; if, so long as, and
to the extent federal financial  participation  is  available  for  such
expenditures provided pursuant to such waiver.
(f)  Notwithstanding  any inconsistent provision of this title, for an
individual who has income in excess of an applicable income  eligibility
standard  and  is  allowed to achieve eligibility for medical assistance
under this title by incurring medical expenses equal to  the  amount  of
such  excess  income,  the  amount of excess income may be calculated by
comparing the individual's MAGI household income to the  MAGI-equivalent
of  the  applicable income eligibility standard; provided, however, that
medical assistance shall be furnished pursuant to  this  paragraph  only
if,   for  so  long  as,  and  to  the  extent  that  federal  financial
participation is available therefor. The commissioner  of  health  shall
make  any  amendments to the state plan for medical assistance, or apply
for any waiver or approval under the federal social  security  act  that
are necessary to carry out the provisions of this paragraph.
(g)  Coverage  of certain noncitizens.   (1) Applicants and recipients
who  are  lawfully  admitted  for  permanent  residence,  or   who   are
permanently residing in the United States under color of law, or who are
non-citizens  in  a  valid  nonimmigrant  status, as defined in 8 U.S.C.
1101(a)(15); who are MAGI eligible pursuant to  paragraph  (b)  of  this
subdivision; and who would be ineligible for medical assistance coverage
under  subdivisions one and two of section three hundred sixty-five-a of
this title solely due to their immigration status if the  provisions  of
section  one hundred twenty-two of this chapter were applied, shall only
be eligible for assistance under this title if enrolled  in  a  standard
health  plan  offered  by a basic health program established pursuant to
section three hundred sixty-nine-gg of this article or a standard health
plan offered by a 1332 state innovation program established pursuant  to
section  three  hundred sixty-nine-ii of this article if such program is
established and operating.
(2) With respect to a person described in  subparagraph  one  of  this
paragraph  who is enrolled in a standard health plan, medical assistance
coverage shall mean:
(i) payment of required premiums and  other  cost-sharing  obligations
under  the  standard  health  plan  that  exceed the person's co-payment
obligation under subdivision six of section three hundred  sixty-seven-a
of this title; and
(ii) payment for services and supplies described in subdivision one or
two  of section three hundred sixty-five-a of this title, as applicable,
but only to the extent that such services and supplies are  not  covered
by the standard health plan.
(3)  Nothing  in  this subdivision shall prevent a person described in
subparagraph one of this paragraph  from  qualifying  for  or  receiving
medical assistance while his or her enrollment in a standard health plan
is pending, in accordance with applicable provisions of this title.
(4) (a) Applicants and recipients who are age sixty-five or older, who
are  otherwise  eligible  for medical assistance under this section, but
for their  immigration  status,  are  eligible  for  medical  assistance
according to the following:
(b)   individuals   eligible   for   medical  assistance  pursuant  to
subparagraph (a) of this paragraph  shall  participate  in  and  receive
covered benefits available through a managed care provider under section
three hundred sixty-four-j of this article that is certified pursuant to
section  forty-four  hundred  three  of the public health law; provided,
however, to the extent that any covered benefits available through  such
managed  care  providers  as of January first, two thousand twenty-three
are transitioned to  fee-for-service  coverage,  then  such  individuals
shall  continue  to be entitled to these benefits in the fee-for-service
program, rather than through a managed care provider.
1-a. Notwithstanding any other provision of law, in the event  that  a
person   who   is  an  incarcerated  individual  of  a  state  or  local
correctional facility, as defined in section two of the correction  law,
or  an  eligible  juvenile inmate of a public institution, as defined in
subsection (nn) of section nineteen hundred two of the  social  security
act,  was  in  receipt  of  medical  assistance  pursuant  to this title
immediately  prior  to  being  admitted  to  such  facility  or   public
institution,  or  for  juveniles  determined  eligible  for such medical
assistance while an inmate of a public institution,  such  person  shall
remain eligible for medical assistance while an incarcerated individual,
except  that  no  medical assistance shall be furnished pursuant to this
title for any care, services, or supplies provided during such  time  as
the  person  is  an  incarcerated  individual;  provided,  however, that
nothing herein shall be deemed as preventing the  provision  of  medical
assistance  for inpatient hospital services furnished to an incarcerated
individual at a hospital outside of the premises  of  such  correctional
facility  or  public institution, or pursuant to other federal authority
authorizing the provision  of  medical  assistance  to  an  incarcerated
individual  of  a state or local correctional facility during the thirty
days  prior  to  release,  to  the   extent   that   federal   financial
participation  is available for the costs of such services. Upon release
from such facility or public institution, such person shall continue  to
be eligible for receipt of medical assistance furnished pursuant to this
title  until  such  time  as  the  person  is determined to no longer be
eligible for receipt of such assistance.  To  the  extent  permitted  by
federal  law,  the  time  during  which  such  person is an incarcerated
individual shall not be included in any calculation of when  the  person
must  recertify  his  or  her  eligibility  for  medical  assistance  in
accordance with this article. The state may seek  federal  authority  to
provide  medical  assistance for transitional services including but not
limited to medical, prescription, and  care  coordination  services  for

high  needs  incarcerated  individuals  in  state and local correctional
facilities during the thirty days prior to release.
1-b.  Notwithstanding  any other provision of law, in the event that a
person who is an inpatient in an institution  for  mental  diseases,  as
defined  by  federal  law  and  regulations,  and  who was in receipt of
medical assistance pursuant to this title  immediately  prior  to  being
admitted to such facility, or who was directly admitted to such facility
after  being an inpatient in another institution for mental diseases and
who was in receipt of medical assistance  prior  to  admission  to  such
transferring  institution, such person shall remain eligible for medical
assistance while an inpatient in such facility; provided, however,  that
no  medical assistance shall be furnished pursuant to this title for any
care, services, or supplies provided during the time that such person is
an inpatient, except to the extent that federal financial  participation
is  available  for  the  costs of such care, services, or supplies. Upon
release from such facility, such person shall continue  to  be  eligible
for receipt of medical assistance furnished pursuant to this title until
such  time  as  the  person  is  determined to no longer be eligible for
receipt of such assistance. To the extent permitted by federal law,  the
time  during  which  such  person  is an inpatient in an institution for
mental diseases shall not be included in any  calculation  of  when  the
person  must  recertify his or her eligibility for medical assistance in
accordance with this article.
2. * (a) The following income and resources shall be exempt and  shall
not  be  taken  into consideration in determining a person's eligibility
for medical care, services and supplies available under this title:
(1) (i) for applications for medical assistance  filed  on  or  before
December thirty-first, two thousand five, a homestead which is essential
and appropriate to the needs of the household;
(ii) for applications for medical assistance filed on or after January
first,  two thousand six, a homestead which is essential and appropriate
to the needs of the household; provided, however,  that  in  determining
eligibility of an individual for medical assistance for nursing facility
services  and other long term care services, the individual shall not be
eligible for such assistance if the individual's equity interest in  the
homestead   exceeds  seven  hundred  fifty  thousand  dollars;  provided
further, that the dollar  amount  specified  in  this  clause  shall  be
increased,  beginning  with  the  year two thousand eleven, from year to
year, in an amount to be determined by  the  secretary  of  the  federal
department  of  health  and  human  services,  based  on  the percentage
increase in the consumer price index for all urban consumers, rounded to
the nearest one thousand dollars. If such secretary does  not  determine
such  an  amount,  the  department  of health shall increase such dollar
amount based on such increase in the consumer price  index.  Nothing  in
this  clause shall be construed as preventing an individual from using a
reverse mortgage or home equity loan to reduce  the  individual's  total
equity interest in the homestead. The home equity limitation established
by  this  clause shall be waived in the case of a demonstrated hardship,
as determined pursuant to criteria established by  such  secretary.  The
home  equity  limitation shall not apply if one or more of the following
persons is lawfully residing in  the  individual's  homestead:  (A)  the
spouse of the individual; or (B) the individual's child who is under the
age  of  twenty-one, or is blind or permanently and totally disabled, as
defined in section 1614 of the federal social security act.
(2) essential personal property;
(3) a burial fund, to the extent allowed as an exempt  resource  under
the  cash  assistance  program  to  which  the applicant is most closely
related;
(4) savings in amounts equal to  one  hundred  fifty  percent  of  the
income  amount  permitted  under  subparagraph  seven of this paragraph,
provided, however, that the amounts for one and  two  person  households
shall  not  be  less  than  the  amounts  permitted  to  be  retained by
households  of  the same size in order to qualify for benefits under the
federal supplemental security income program;
(5) (i) such income  as  is  disregarded  or  exempt  under  the  cash
assistance  program  to  which the applicant is most closely related for
purposes of this subparagraph, cash assistance program means either  the
aid  to dependent children program as it existed on the sixteenth day of
July, nineteen hundred ninety-six, or the supplemental  security  income
program; and
(ii)  such  income  of  a  disabled person (as such term is defined in
section 1614(a)(3) of the federal social security act (42 U.S.C. section
1382c(a)(3)) or in  accordance  with  any  other  rules  or  regulations
established by the social security administration), that is deposited in
trusts  as  defined in clause (iii) of subparagraph two of paragraph (b)
of this subdivision in the same calendar month within which said  income
is received;
(6) health insurance premiums;
(7)  income  based  on  the  number  of  family members in the medical
assistance household, as defined  in  regulations  by  the  commissioner
consistent  with  federal  regulations  under  title  XIX of the federal
social security act and calculated as follows:
(i) The amounts for one and two person households and  families  shall
be  equal  to  twelve times the standard of monthly need for determining
eligibility for and the amount of additional state  payments  for  aged,
blind  and disabled persons pursuant to section two hundred nine of this
article rounded up to the next highest one hundred dollars for  eligible
individuals and couples living alone, respectively.
(ii)  The  amounts for households of three or more shall be calculated
by increasing the income standard for a household  of  two,  established
pursuant to clause (i) of this subparagraph, by fifteen percent for each
additional household member above two, such that the income standard for
a  three-person  household  shall  be one hundred fifteen percent of the
income standard for a two-person household, the income  standard  for  a
four-person  household shall be one hundred thirty percent of the income
standard for a two-person household, and so on.
(iii)  No  other  income  or  resources,  including  federal  old-age,
survivors  and disability insurance, state disability insurance or other
payroll deductions, whether mandatory or optional, shall be  exempt  and
all  other  income  and  resources shall be taken into consideration and
required to be applied toward the payment or partial payment of the cost
of medical care and services available under this title, to  the  extent
permitted by federal law.
(9)   Subject   to   subparagraph  eight,  the  department,  upon  the
application of a local social services  district,  after  passage  of  a
resolution  by  the local legislative body authorizing such application,
may adjust the income exemption based upon the variations  between  cost
of  shelter  in urban areas and rural areas in accordance with standards
prescribed by the United  States  secretary  of  health,  education  and
welfare.
(10)  (i)  A person who is receiving or is eligible to receive federal
supplemental security income payments and/or additional  state  payments
is entitled to a personal needs allowance as follows:
(A)  for  the  personal expenses of a resident of a residential health
care facility, as defined by section twenty-eight  hundred  one  of  the
public health law, the amount of fifty-five dollars per month;
(B)  for  the  personal expenses of a resident of an intermediate care
facility  operated  or  licensed  by  the   office   for   people   with
developmental  disabilities  or  a patient of a hospital operated by the
office of mental health, as defined by subdivision ten of  section  1.03
of the mental hygiene law, the amount of thirty-five dollars per month.
(ii)  A person who neither receives nor is eligible to receive federal
supplemental security income payments and/or additional  state  payments
is entitled to a personal needs allowance as follows:
(A)  for  the  personal expenses of a resident of a residential health
care facility, as defined by section twenty-eight  hundred  one  of  the
public health law, the amount of fifty dollars per month;
(B)  for  the  personal expenses of a resident of an intermediate care
facility  operated  or  licensed  by  the   office   for   people   with
developmental  disabilities  or  a patient of a hospital operated by the
office of mental health, as defined by subdivision ten of  section  1.03
of the mental hygiene law, the amount of thirty-five dollars per month.
(iii)  Notwithstanding  the provisions of clauses (i) and (ii) of this
subparagraph, the personal needs allowance for a person who is a veteran
having neither a spouse nor a child, or a surviving spouse of a  veteran
having  no  child,  who  receives  a  reduced  pension  from the federal
veterans administration, and who is a resident of a nursing facility, as
defined in section 1919 of the federal social  security  act,  shall  be
equal  to  such  reduced  monthly  pension  but  shall not exceed ninety
dollars per month.
(11) subject to the availability of federal  financial  participation,
any  amount,  including earnings thereon, in a qualified NY ABLE account
as established pursuant to article eighty-four  of  the  mental  hygiene
law, any contributions to such NY ABLE account, and any distribution for
qualified  disability expenses from such account; provided however, that
such exemption shall be consistent with section  529A  of  the  Internal
Revenue Code of 1986, as amended.
* NB  Effective  until  January  1,  2023 subject to federal financial
participation
* (a) The following income and resources shall be exempt and shall not
be taken into consideration in determining a  person's  eligibility  for
medical care, services and supplies available under this title:
(1)  (i)  for  applications  for medical assistance filed on or before
December thirty-first, two thousand five, a homestead which is essential
and appropriate to the needs of the household;
(ii) for applications for medical assistance filed on or after January
first, two thousand six, a homestead which is essential and  appropriate
to  the  needs  of the household; provided, however, that in determining
eligibility of an individual for medical assistance for nursing facility
services and other long term care services, the individual shall not  be
eligible  for such assistance if the individual's equity interest in the
homestead  exceeds  seven  hundred  fifty  thousand  dollars;   provided
further,  that  the  dollar  amount  specified  in  this clause shall be
increased, beginning with the year two thousand  eleven,  from  year  to
year,  in  an  amount  to  be determined by the secretary of the federal
department of  health  and  human  services,  based  on  the  percentage
increase in the consumer price index for all urban consumers, rounded to
the  nearest  one thousand dollars. If such secretary does not determine
such an amount, the department of  health  shall  increase  such  dollar
amount  based  on  such increase in the consumer price index. Nothing in
this clause shall be construed as preventing an individual from using  a
reverse  mortgage  or  home equity loan to reduce the individual's total
equity interest in the homestead. The home equity limitation established
by this clause shall be waived in the case of a  demonstrated  hardship,

as  determined  pursuant  to criteria established by such secretary. The
home equity limitation shall not apply if one or more of  the  following
persons  is  lawfully  residing  in  the individual's homestead: (A) the
spouse of the individual; or (B) the individual's child who is under the
age  of  twenty-one, or is blind or permanently and totally disabled, as
defined in section 1614 of the federal social security act.
(2) essential personal property;
(3) a burial fund, to the extent allowed as an exempt  resource  under
the  cash  assistance  program  to  which  the applicant is most closely
related;
(4) savings in amounts equal to  one  hundred  fifty  percent  of  the
income  amount  permitted  under  subparagraph  seven of this paragraph,
provided, however, that the amounts for one and  two  person  households
shall  not  be  less  than  the  amounts  permitted  to  be  retained by
households of the same size in order to qualify for benefits  under  the
federal supplemental security income program;
(5)  (i)  such  income  as  is  disregarded  or  exempt under the cash
assistance program to which the applicant is most  closely  related  for
purposes  of this subparagraph, cash assistance program means either the
aid to dependent children program as it existed on the sixteenth day  of
July,  nineteen  hundred ninety-six, or the supplemental security income
program; and
(ii) such income of a disabled person (as  such  term  is  defined  in
section 1614(a)(3) of the federal social security act (42 U.S.C. section
1382c(a)(3))  or  in  accordance  with  any  other  rules or regulations
established by the social security administration), that is deposited in
trusts as defined in clause (iii) of subparagraph two of  paragraph  (b)
of  this subdivision in the same calendar month within which said income
is received;
(6) health insurance premiums;
(7) income based on the  number  of  family  members  in  the  medical
assistance  household,  as  defined  in  regulations by the commissioner
consistent with federal regulations  under  title  XIX  of  the  federal
social  security  act  that  does  not  exceed  one hundred thirty-eight
percent of the federal poverty line  for  the  applicable  family  size,
which  shall  be  calculated  in  accordance with guidance issued by the
United States secretary for health and human  services  and  with  other
applicable provisions of this section;
(8) No other income or resources, including federal old-age, survivors
and  disability  insurance,  state disability insurance or other payroll
deductions, whether mandatory or optional, shall be exempt and all other
income and resources shall be taken into consideration and  required  to
be  applied toward the payment or partial payment of the cost of medical
care and services available under this title, to the extent permitted by
federal law.
(9)  Subject  to  subparagraph  eight,  the   department,   upon   the
application  of  a  local  social  services district, after passage of a
resolution by the local legislative body authorizing  such  application,
may  adjust  the income exemption based upon the variations between cost
of shelter in urban areas and rural areas in accordance  with  standards
prescribed  by  the  United  States  secretary  of health, education and
welfare.
(10) (i) A person who is receiving or is eligible to  receive  federal
supplemental  security  income payments and/or additional state payments
is entitled to a personal needs allowance as follows:
(A) for the personal expenses of a resident of  a  residential  health
care  facility,  as  defined  by section twenty-eight hundred one of the
public health law, the amount of fifty-five dollars per month;
(B) for the personal expenses of a resident of  an  intermediate  care
facility   operated   or   licensed   by  the  office  for  people  with
developmental disabilities or a patient of a hospital  operated  by  the
office  of  mental health, as defined by subdivision ten of section 1.03
of the mental hygiene law, the amount of thirty-five dollars per month.
(ii)  A person who neither receives nor is eligible to receive federal
supplemental security income payments and/or additional  state  payments
is entitled to a personal needs allowance as follows:
(A)  for  the  personal expenses of a resident of a residential health
care facility, as defined by section twenty-eight  hundred  one  of  the
public health law, the amount of fifty dollars per month;
(B)  for  the  personal expenses of a resident of an intermediate care
facility  operated  or  licensed  by  the   office   for   people   with
developmental  disabilities  or  a patient of a hospital operated by the
office of mental health, as defined by subdivision ten of  section  1.03
of the mental hygiene law, the amount of thirty-five dollars per month.
(iii)  Notwithstanding  the provisions of clauses (i) and (ii) of this
subparagraph, the personal needs allowance for a person who is a veteran
having neither a spouse nor a child, or a surviving spouse of a  veteran
having  no  child,  who  receives  a  reduced  pension  from the federal
veterans administration, and who is a resident of a nursing facility, as
defined in section 1919 of the federal social  security  act,  shall  be
equal  to  such  reduced  monthly  pension  but  shall not exceed ninety
dollars per month.
(11) subject to the availability of federal  financial  participation,
any  amount,  including earnings thereon, in a qualified NY ABLE account
as established pursuant to article eighty-four  of  the  mental  hygiene
law, any contributions to such NY ABLE account, and any distribution for
qualified  disability expenses from such account; provided however, that
such exemption shall be consistent with section  529A  of  the  Internal
Revenue Code of 1986, as amended.
* NB   Effective   January   1,  2023  subject  to  federal  financial
participation
* (b) (1) In establishing standards for  determining  eligibility  for
and  amount  of  such assistance, the department shall take into account
only such income and resources, in accordance with federal requirements,
as are available to the applicant or  recipient  and  as  would  not  be
required  to  be  disregarded  or  set aside for future needs, and there
shall be a reasonable evaluation of any such income or resources.  There
shall  not  be  taken into consideration the financial responsibility of
any individual for any applicant or recipient of assistance  under  this
title  unless such applicant or recipient is such individual's spouse or
such individual's child  who  is  under  twenty-one  years  of  age.  In
determining  the eligibility of a child who is categorically eligible as
blind or disabled, as determined under  regulations  prescribed  by  the
social  security act for medical assistance, the income and resources of
parents or spouses of parents are not considered available to that child
if she/he does not regularly share the  common  household  even  if  the
child  returns  to  the  common  household  for  periodic visits. In the
application of standards of eligibility with respect  to  income,  costs
incurred  for medical care, whether in the form of insurance premiums or
otherwise, shall be taken into account. Any person who is eligible  for,
or  reasonably appears to meet the criteria of eligibility for, benefits
under title XVIII of the federal social security act shall  be  required
to  apply  for  and  fully utilize such benefits in accordance with this
chapter.
(2) (a) Notwithstanding any inconsistent provision of this chapter  or
any  other  law to the contrary, upon the request of the social services

district the commissioner shall, subject to the approval of the director
of the budget and the procurement  of  the  applicable  federal  waiver,
authorize   demonstration   projects  in  up  to  five  social  services
districts,   or  portions  thereof,  for  the  purpose  of  testing  the
feasibility of utilizing a special medical assistance income eligibility
standard for certain persons in  general  hospitals  on  alternate  care
status  who  have  been  determined  medically  eligible for care in the
community, in  order  to  ease  the  financial  burden  of  the  legally
responsible  relatives.  For any person sixty-five years of age or older
residing in such social services districts, who is in a general hospital
on alternate care  status  awaiting  placement  in  a  nursing  home  or
intermediate  care  facility,  as  to whom it has been determined by the
social services district that  such  person  can  be  sustained  in  the
community  with  in-home  services  at a cost not exceeding seventy-five
percent of the average cost of care in a nursing  home  or  intermediate
care facility, and who meets such other criteria as the commissioner may
establish,  the  social services district may, where it is beneficial to
the  applicant  and  legally  responsible  relatives,  make  a  separate
eligibility  determination for such person, by adding the income of such
person and support considered available  from  the  legally  responsible
relative  determined  in  accordance with regulations of the department,
and comparing this sum to the medical assistance income exemption  level
for a household of one.
(b)  In  addition to the authorization provided for in clause (a), the
commissioner  shall,  upon  request  of  a  social  services   district,
authorize one social services district, or a portion thereof, to use the
special  medical  assistance  income eligibility standard established in
clause (a) for persons: who are sixty-five years  of  age  or  older  in
general hospitals or in the community and who are medically eligible for
placement  in  a  nursing home or intermediate care facility; and who it
has been determined by the social services district can be sustained  in
the  community with in-home services at a cost not to exceed the average
cost of care in a nursing home or intermediate care facility.
(c) No provision of this subparagraph shall be construed so as to deny
any benefit to a person otherwise eligible  for  medical  assistance  in
accordance with this chapter.
(d)  Resource  eligibility shall be established in accordance with the
requirements of paragraph (a) of this subdivision.
(e) This subparagraph shall be effective if, and as long  as,  federal
financial participation is available.
* NB Expired March 31, 1988
* NB There are 2 sb 2 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 for a period of one year beginning  on  the  last
day  of  pregnancy,  without  regard  to any change in the income of the
family that includes the pregnant woman, even if such  change  otherwise
would have rendered her ineligible for medical assistance.
(2)  A  child  born  to  a  woman  eligible  for and receiving medical
assistance on the date of the child's birth  shall  be  deemed  to  have
applied  for medical assistance and to have been found eligible for such
assistance on the date of such birth and to  remain  eligible  for  such
assistance for a period of one year, so long as the child is a member of
the woman's household and the woman remains eligible for such assistance
or would remain eligible for such assistance if she were pregnant.
* (3) A child under the age of nineteen who is determined eligible for
medical   assistance  under  the  provisions  of  this  section,  shall,

consistent with applicable federal  requirements,  remain  eligible  for
such assistance until the earlier of:
(i)  the  last  day  of the month which is twelve months following the
determination or redetermination of eligibility for such assistance; or
(ii) the last day of the month in which the child reaches the  age  of
nineteen.
* NB Effective until January 1, 2025
* (3)  (A)  A  child  between  the  ages  of  six  and 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 last day of the  month  which  is
twelve  months following the determination or renewal of eligibility for
such assistance.
(B) A child under the age  of  six  who  is  determined  eligible  for
medical   assistance  under  the  provisions  of  this  section,  shall,
consistent with applicable  federal  requirements,  remain  continuously
eligible for medical assistance coverage until the later of:
(i)  the  last day of the twelfth month following the determination or
renewal of eligibility for such assistance; or
(ii) the last day of the month in which the child reaches the  age  of
six.
* NB Effective January 1, 2025
(4) An infant eligible under subparagraph two or four of paragraph (b)
of  subdivision one of this section who is receiving medically necessary
in-patient services for which medical assistance is provided on the date
the child attains one year of age, and who, but for attaining such  age,
would  remain  eligible  for medical assistance under such subparagraph,
shall continue to remain eligible until the end of the  stay  for  which
in-patient services are being furnished.
(5)  A  child  eligible  under  subparagraph three of paragraph (b) of
subdivision one of this section who  is  receiving  medically  necessary
in-patient services for which medical assistance is provided on the date
the child attains nineteen years of age, and who, but for attaining such
age,  would remain eligible for medical assistance under this paragraph,
shall continue to remain eligible until the end of the  stay  for  which
in-patient services are being furnished.
(6)  A  woman  who was pregnant while in receipt of medical assistance
who subsequently loses her eligibility for medical assistance shall have
her eligibility  for  medical  assistance  continued  for  a  period  of
twenty-four  months  from the end of the month in which the sixtieth day
following the end of her pregnancy occurs, but only for Federal Title  X
services  which are eligible for reimbursement by the federal government
at a rate of ninety percent; provided, however, that such ninety percent
limitation  shall  not  apply  to  those  services  identified  by   the
commissioner  as  services, including treatment for sexually transmitted
diseases, generally performed as part of or as a follow-up to a  service
eligible  for  such  ninety percent reimbursement; and provided further,
however, that nothing in  this  paragraph  shall  be  deemed  to  affect
payment  for such Title X services if federal financial participation is
not available for such care, services and supplies.
(c)  Continuous  coverage  for  adults.  Notwithstanding   any   other
provision  of  law, a person whose eligibility for medical assistance is
based on the modified  adjusted  gross  income  of  the  person  or  the
person's  household, and who loses eligibility for such assistance for a
reason other than  citizenship  status,  lack  of  state  residence,  or
failure  to  provide a valid social security number, before the end of a
twelve month period beginning on the  effective  date  of  the  person's
initial  eligibility  for such assistance, or before the end of a twelve

month period beginning on the date of any  subsequent  determination  of
eligibility  based  on modified adjusted gross income, shall have his or
her eligibility for such assistance continued  until  the  end  of  such
twelve  month  period,  provided that federal financial participation in
the costs of such assistance is available.
(d) Breast and cervical cancer treatment.
(1) Persons who are not eligible  for  medical  assistance  under  the
terms  of  section  1902(a)(10)(A)(i) of the federal social security act
are eligible for medical assistance coverage  during  the  treatment  of
breast or cervical cancer, subject to the provisions of this paragraph.
(2)  (i)  Medical  assistance  is  available  under  this paragraph to
persons who are under sixty-five years of age, have  been  screened  for
breast  and/or cervical cancer under the Centers for Disease Control and
Prevention breast and cervical cancer early detection program  and  need
treatment  for  breast or cervical cancer, and are not otherwise covered
under creditable coverage  as  defined  in  the  federal  public  health
service act; provided however that medical assistance shall be furnished
pursuant  to this clause only to the extent permitted under federal law,
if,  for  so  long  as,  and  to  the  extent  that  federal   financial
participation is available therefor.
(ii)  Medical  assistance is available under this paragraph to persons
who meet the requirements of clause (i) of  this  subparagraph  but  for
their  age  and/or  gender,  who  have  been  screened for breast and/or
cervical cancer under the program described in title  one-A  of  article
twenty-four  of  the  public health law and need treatment for breast or
cervical cancer, and are not otherwise covered under creditable coverage
as defined in the federal public health service  act;  provided  however
that  medical assistance shall be furnished pursuant to this clause only
if and for so long as the provisions of clause (i) of this  subparagraph
are in effect.
(3) Medical assistance provided to a person under this paragraph shall
be  limited  to  the  period in which such person requires treatment for
breast or cervical cancer.
(4) (i) The commissioner of health shall promulgate  such  regulations
as  may be necessary to carry out the provisions of this paragraph. Such
regulations  shall  include,  but  not  be   limited   to:   eligibility
requirements;  a  description of the medical services which are covered;
and a process for providing presumptive  eligibility  when  a  qualified
entity,  as  defined  by  the  commissioner,  determines on the basis of
preliminary  information  that  a  person  meets  the  requirements  for
eligibility under this paragraph.
(ii)  For  purposes  of determining eligibility for medical assistance
under this paragraph, resources available to such individual  shall  not
be  considered  nor  required  to  be applied toward the payment or part
payment of the cost of medical care,  services  and  supplies  available
under this paragraph.
(iii)  An individual shall be eligible for presumptive eligibility for
medical assistance under this paragraph in accordance  with  subdivision
five of section three hundred sixty-four-i of this title.
(5) The commissioner of health shall, consistent with this title, make
any  necessary  amendments  to  the  state  plan  for medical assistance
submitted pursuant to section three hundred sixty-three-a of this title,
in order to ensure federal financial participation in expenditures under
this paragraph. Notwithstanding any provision of law  to  the  contrary,
the provisions of clause (i) of subparagraph two of this paragraph shall
be  effective only if and for so long as federal financial participation
is available in the costs of medical assistance furnished thereunder.
(e) Colon and prostate cancer treatment.
(1) Notwithstanding any other provision of  law  to  the  contrary,  a
person  who  has  been  screened  or referred for screening for colon or
prostate  cancer  by  the  cancer   services   screening   program,   as
administered  by  the  department of health, and has been diagnosed with
colon  or  prostate  cancer  is  eligible for medical assistance for the
duration of his or her treatment for such cancer.
(2) Persons eligible for medical assistance under this paragraph shall
have an income of two hundred fifty percent or less  of  the  comparable
federal  income official poverty line as defined and annually revised by
the federal office of management and budget.
(3) An individual shall be eligible for  presumptive  eligibility  for
medical  assistance  under this paragraph in accordance with subdivision
five of section three hundred sixty-four-i of this title.
(4) Medical assistance is available under this  paragraph  to  persons
who  are  under  sixty-five  years of age, and are not otherwise covered
under creditable coverage  as  defined  in  the  federal  Public  Health
Service Act.
5.  (a)  In  determining  the initial or continuing eligibility of any
person for assistance under this title, there shall be included  in  the
amount   of   resources   considered   available   to  such  person  the
uncompensated value of any resource transferred prior  to  the  date  of
application  for medical assistance as specified in paragraphs (b), (c),
(d) and (e) of this subdivision, and such person shall be ineligible for
such assistance  for  such  period  or  periods  as  specified  in  this
subdivision.
(b)  For  transfers  made  on  or  after April tenth, nineteen hundred
eighty-two and prior to October first, nineteen hundred eighty-nine:
(1) a nonexempt resource shall mean any resource which if retained  by
such  person would not be exempt from consideration under the provisions
of subdivision two of this section;
(2) any transfer of  a  nonexempt  resource  made  within  twenty-four
months  prior  to  the  date  of  a  person's  application  for  medical
assistance shall be presumed to  have  been  made  for  the  purpose  of
qualifying  for  such  assistance;  however,  if  such  person furnishes
evidence to establish that the transfer was exclusively for  some  other
purpose,  the  uncompensated  value shall not be considered available to
such person in determining his or her initial or  continued  eligibility
for medical assistance;
(3)  the  uncompensated  value  of any such resource shall be the fair
market value of such resource at the time of transfer, minus the  amount
of the compensation received by the person in exchange for the resource;
(4)  any person determined to have excess resources of twelve thousand
dollars or less because of  the  application  of  this  paragraph  shall
remain  ineligible  for  assistance  under  this  title  for a period of
twenty-four months from the date of the transfer, or until  such  person
can  demonstrate  that he or she has incurred medical expenses after the
date of transfer in the amount of such excess above otherwise  allowable
resources, whichever period is shorter;
(5) any person determined to have excess resources of more than twelve
thousand  dollars  because  of  the  application of this paragraph shall
remain ineligible for assistance under this title  for  a  period  which
exceeds  twenty-four  months, which period shall be determined by adding
an additional month of ineligibility for each two  thousand  dollars  in
excess  of twelve thousand dollars, or until such person can demonstrate
that he or she has incurred medical expenses after the date of  transfer
in  the  amount  of  such  excess  above  otherwise allowable resources,
whichever period is shorter.
(c) For transfers made on or after  October  first,  nineteen  hundred
eighty-nine:
(1)  (i)  "institutionalized  person"  means  any  person  who  is  an
in-patient in a nursing facility, or who is an in-patient in  a  medical
facility  and  is  receiving  a  level  of  care  provided  in a nursing
facility, or who is receiving care, services or supplies pursuant  to  a
waiver pursuant to subsection (c) of section nineteen hundred fifteen of
the federal social security act.
(ii)  "resources" includes any resources which would not be considered
exempt from consideration under the provisions  of  subdivision  two  of
this   section,   without  regard  to  the  exemption  provided  for  in
subparagraph one of paragraph (a) of such subdivision.
(iii) "nursing facility" means a nursing home as  defined  by  section
twenty-eight hundred one of the public health law.
(iv) "nursing facility services" means nursing care and health related
services  provided  in a nursing facility, a level of care provided in a
hospital which is equivalent to the care which is provided in a  nursing
facility  and  care,  services or supplies provided pursuant to a waiver
pursuant to subsection (c) of section nineteen hundred  fifteen  of  the
federal social security act.
(2)  the  uncompensated  value  of a resource shall be the fair market
value of such resource at the time of transfer, minus the amount of  the
compensation received in exchange for the resource.
(3) any transfer of a resource by a person or such person's spouse for
less  than  fair  market  value  made  within or after the thirty months
immediately preceding the date the person becomes  an  institutionalized
person  or  the  date  of  application  for  medical assistance while an
institutionalized person, if later, shall render the  person  ineligible
for  nursing  facility  services  for a period specified in subparagraph
four of this paragraph; however, an institutionalized person  shall  not
be ineligible for nursing facility services solely by reason of any such
transfer to the extent that:
(i)  the  resource  transferred  was  a home and title to the home was
transferred to: (A) the spouse of such person; or (B) a  child  of  such
person  who  is  under the age of twenty-one years or certified blind or
certified permanently and totally disabled, as defined  by  section  two
hundred  eight of this title; or (C) a sibling of such person who has an
equity interest in such home and who resided in such home for  a  period
of  at  least  one year immediately before the date the person became an
institutionalized person; or (D) a son or daughter of  such  person  who
was residing in such home for a period of at least two years immediately
before  the date such person became an institutionalized person, and who
provided care to such person which permitted such person  to  reside  at
home rather than in an institution or facility; or
(ii)  the  resource was transferred to or for the sole benefit of such
person's spouse, or from such person's spouse to or for the sole benefit
of such person, or to his  or  her  child  who  is  certified  blind  or
certified permanently and totally disabled; or
(iii)  a  satisfactory  showing  is  made that: (A) the person or such
person's spouse intended to dispose  of  the  resource  either  at  fair
market  value,  or for other valuable consideration, or (B) the resource
was transferred exclusively for a purpose  other  than  to  qualify  for
medical assistance; or
(iv) denial of eligibility would work an undue hardship, as defined by
the  commissioner  which  definition  shall include the inability of the
institutionalized  person  or  such  person's  spouse  to  retrieve  the
resource or to obtain fair market value therefor despite his or her best
efforts.
(4)  Any  transfer  made  by  a  person  or  the person's spouse under
subparagraph three of this  paragraph  shall  cause  the  person  to  be
ineligible  for  nursing  facility  services, for services at a level of
care equivalent to that of nursing facility services for the  lesser  of
(i)  a  period  of  thirty  months  from the date of transfer, or (ii) a
period equal to the  total  uncompensated  value  of  the  resources  so
transferred, divided by the average cost of nursing facility services to
a  private patient for a given period of time at the time of application
as determined by the commissioner. For purposes of this subparagraph the
average cost of nursing facility services to a  private  patient  for  a
given  period of time at the time of application shall be presumed to be
one hundred twenty percent of the average  medical  assistance  rate  of
payment  as  of  the  first  day  of  January  of  each year for nursing
facilities within the region as established pursuant to paragraph (b) of
subdivision sixteen of  section  twenty-eight  hundred  seven-c  of  the
public health law wherein the applicant resides.
(d)   For   transfers   made  after  August  tenth,  nineteen  hundred
ninety-three:
(1) (i) "assets" means all income and resources of an  individual  and
of  the  individual's spouse, including income or resources to which the
individual or the individual's spouse is  entitled  but  which  are  not
received  because  of  action  by:  the  individual  or the individual's
spouse; a person with legal authority to act in place of or on behalf of
the individual or the  individual's  spouse;  a  person  acting  at  the
direction  or  upon  the  request  of the individual or the individual's
spouse; or by a court or administrative body with legal authority to act
in place of or on behalf of the individual or the individual's spouse or
at  the  direction  or  upon  the  request  of  the  individual  or  the
individual's spouse.
(ii)  "blind"  has  the  same  meaning  given  to such term in section
1614(a)(2) of the federal social social security act.
(iii) "disabled" has the same meaning given to such  term  in  section
1614(a)(3) of the federal social security act.
(iv)  "income" has the same meaning given to such term in section 1612
of the federal social security act.
(v) "resources" has the same meaning given to  such  term  in  section
1613  of the federal social security act, without regard, in the case of
an institutionalized  individual,  to  the  exclusion  provided  for  in
subsection (a)(1) of such section.
(vi)  "look-back period" means the thirty-six month period, or, in the
case of payments from a trust or portions of a trust which  are  treated
as   assets  disposed  of  by  the  individual  pursuant  to  department
regulations, the sixty-month period, immediately preceding the date that
an  institutionalized  individual  is  both  institutionalized  and  has
applied for medical assistance.
(vii)  "institutionalized  individual"  means any individual who is an
in-patient  in  a  nursing  facility,  including  an  intermediate  care
facility  for  individuals with developmental disabilities, or who is an
in-patient in a medical facility  and  is  receiving  a  level  of  care
provided  in  a  nursing facility, or who is receiving care, services or
supplies pursuant to a waiver granted  pursuant  to  subsection  (c)  of
section 1915 of the federal social security act.
(viii)  "intermediate care facility for individuals with developmental
disabilities" means a facility certified under article  sixteen  of  the
mental  hygiene  law and which has a valid agreement with the department
for providing intermediate care facility services and receiving  payment
therefor under title XIX of the federal social security act.
(ix)  "nursing  facility"  means  a nursing home as defined by section
twenty-eight hundred one of the public health law  and  an  intermediate
care facility for individuals with developmental disabilities.
(x)  "nursing facility services" means nursing care and health related
services provided in a nursing facility; a level of care provided  in  a
hospital  which is equivalent to the care which is provided in a nursing
facility; and care, services or supplies provided pursuant to  a  waiver
granted pursuant to subsection (c) of section 1915 of the federal social
security act.
(2)  The  uncompensated  value of an asset is the fair market value of
such asset at the time of transfer, minus the amount of the compensation
received in exchange for the asset.
(3)  In  determining  the  medical  assistance   eligibility   of   an
institutionalized individual, any transfer of an asset by the individual
or  the  individual's spouse for less than fair market value made within
or after the look-back period shall render the individual ineligible for
nursing  facility  services  for  the  period  of  time   specified   in
subparagraph  four  of this paragraph. Notwithstanding the provisions of
this subparagraph, an individual shall not be  ineligible  for  services
solely by reason of any such transfer to the extent that:
(i)  in  the  case  of  an  institutionalized  individual,  the  asset
transferred was a home and title to the home as transferred to: (A)  the
spouse  of the individual; or (B) a child of the individual who is under
the age of twenty-one years or blind or disabled; or (C)  a  sibling  of
the  individual  who has an equity interest in such home and who resided
in such home for a period of at least one year  immediately  before  the
date  the  individual  became  an institutionalized individual; or (D) a
child of the individual who was residing in such home for a period of at
least two years immediately before the date  the  individual  became  an
institutionalized  individual,  and  who provided care to the individual
which permitted the individual to reside  at  home  rather  than  in  an
institution or facility; or
(ii)  the  assets: (A) were transferred to the individual's spouse, or
to another for the sole benefit of the individual's spouse; or (B)  were
transferred from the individual's spouse to another for the sole benefit
of  the individual's spouse; or (C) were transferred to the individual's
child who is blind or disabled, or to a trust established solely for the
benefit of such child; or (D) were transferred to  a  trust  established
solely  for  the  benefit of an individual under sixty-five years of age
who is disabled; or
(iii) a satisfactory showing is made that: (A) the individual  or  the
individual's  spouse  intended  to  dispose of the assets either at fair
market value, or for other valuable consideration;  or  (B)  the  assets
were  transferred  exclusively  for  a purpose other than to qualify for
medical assistance; or (C) all assets transferred  for  less  than  fair
market value have been returned to the individual; or
(iv)   denial  of  eligibility  would  cause  an  undue  hardship,  as
determined pursuant to the regulations of the department  in  accordance
with  criteria established by the secretary of the federal department of
health and human services.
(4) Any transfer made by an  individual  or  the  individual's  spouse
under  subparagraph three of this paragraph shall cause the person to be
ineligible for services for a period  equal  to  the  total,  cumulative
uncompensated  value  of  all  assets  transferred  during  or after the
look-back period, divided  by  the  average  monthly  costs  of  nursing
facility  services  provided  to a private patient for a given period of
time  at  the  time  of  application,  as  determined  pursuant  to  the
regulations  of  the department. The period of ineligibility shall begin

with the first day of the first month during or after which assets  have
been  transferred  for  less  than fair market value, and which does not
occur in any other periods of ineligibility under  this  paragraph.  For
purposes  of  this  subparagraph,  the  average monthly costs of nursing
facility services to a private patient for a given period of time at the
time of application shall be presumed to be one hundred  twenty  percent
of the average medical assistance rate of payment as of the first day of
January  of  each  year for nursing facilities within the region wherein
the applicant resides, as  established  pursuant  to  paragraph  (b)  of
subdivision  sixteen  of  section  twenty-eight  hundred  seven-c of the
public health law.
(5) In the case of an asset held  by  an  individual  in  common  with
another  person  or  persons  in  a joint tenancy, tenancy in common, or
similar arrangement, the asset, or the affected portion  of  the  asset,
shall be considered to be transferred by such individual when any action
is taken, either by such individual or by any other person, that reduces
or eliminates such individual's ownership or control of such asset.
(6)  In  the  case  of  a  trust  established  by  the  individual, as
determined pursuant to the regulations of the department,  any  payment,
other  than  a  payment  to or for the benefit of the individual, from a
revocable trust is  considered  to  be  a  transfer  of  assets  by  the
individual  and  any  payment,  other  than to or for the benefit of the
individual, from the portion of an irrevocable trust  which,  under  any
circumstance, could be made available to the individual is considered to
be a transfer of assets by the individual and, further, the value of any
portion  of  an irrevocable trust from which no payment could be made to
the individual under any circumstances is considered to be a transfer of
assets by the individual for purposes of this section as of the date  of
establishment  of  the trust, or, if later, the date on which payment to
the individual is foreclosed.
(e) For transfers made on or after February eighth, two thousand six:
(1)(i) "assets" means all income and resources of an individual and of
the individual's spouse, including income and  resources  to  which  the
individual  or  the  individual's  spouse  is entitled but which are not
received because of  action  by:  the  individual  or  the  individual's
spouse; a person with legal authority to act in place of or on behalf of
the  individual  or  the  individual's  spouse;  a  person acting at the
direction or upon the request of  the  individual  or  the  individual's
spouse; or by a court or administrative body with legal authority to act
in place of or on behalf of the individual or the individual's spouse or
at  the  direction  or  upon  the  request  of  the  individual  or  the
individual's spouse;
(ii) "blind" has the same  meaning  given  to  such  term  in  section
1614(a)(2) of the federal social security act.
(iii)  "disabled"  has  the same meaning given to such term in section
1614(a)(3) of the federal social security act.
(iv) "income" has the same meaning given to such term in section  1612
of the federal social security act.
(v)  "resources"  has  the  same meaning given to such term in section
1613 of the federal social security act, without regard to the exclusion
provided for in subsection (a)(1) of such section.
(vi) "look-back  period"  means  the  sixty-month  period  immediately
preceding   the  date  that  an  institutionalized  individual  is  both
institutionalized and has applied for medical assistance, or in the case
of a non-institutionalized individual, subject to federal approval,  the
thirty-month   period   immediately   preceding   the   date  that  such
non-institutionalized individual applies for medical assistance coverage
of long term  care  services.  Nothing  herein  precludes  a  review  of

eligibility  for retroactive authorization for medical expenses incurred
during the three months prior to the month of  application  for  medical
assistance.
(vii)  "institutionalized  individual"  means any individual who is an
in-patient  in  a  nursing  facility,  including  an  intermediate  care
facility  for  individuals with developmental disabilities, or who is an
in-patient in a medical facility  and  is  receiving  a  level  of  care
provided  in  a  nursing  facility,  or  who  is  described  in  section
1902(a)(10)(A)(ii)(VI) of the federal social security act.
(viii) "intermediate care facility for individuals with  developmental
disabilities"  means  a  facility certified under article sixteen of the
mental hygiene law and which has a valid agreement with  the  department
for  providing intermediate care facility services and receiving payment
therefor under title XIX of the federal social security act.
(ix) "nursing facility" means a nursing home  as  defined  by  section
twenty-eight  hundred  one  of the public health law and an intermediate
care facility for individuals with developmental disabilities.
(x) "nursing facility services" means nursing care and health  related
services  provided  in a nursing facility; a level of care provided in a
hospital which is equivalent to the care which is provided in a  nursing
facility;  and  care, services or supplies provided pursuant to a waiver
granted pursuant to subsection (c) of section 1915 of the federal social
security act or successor federal waiver.
(xi) "non-institutionalized individual" means an individual who is not
an institutionalized individual, as defined  in  clause  (vii)  of  this
subparagraph.
(xii)  "long  term  care  services"  means  home health care services,
private duty nursing services, personal care services,  assisted  living
program services and such other services for which medical assistance is
otherwise available under this chapter which are designated as long term
care services in the regulations of the department.
(2)  The  uncompensated  value of an asset is the fair market value of
such  asset  at  the  time  of  transfer  less  any  outstanding  loans,
mortgages,  or  other encumbrances on the asset, minus the amount of the
compensation received in exchange for the asset.
(3)  In  determining  the  medical  assistance   eligibility   of   an
institutionalized individual, any transfer of an asset by the individual
or  the  individual's spouse for less than fair market value made within
or after the look-back period shall render the individual ineligible for
nursing  facility  services  for  the  period  of  time   specified   in
subparagraph   five  of  this  paragraph.  In  determining  the  medical
assistance  eligibility  of  a  non-institutionalized  individual,   any
transfer  of  an  asset by the individual or the individual's spouse for
less than fair market value made within or after  the  look-back  period
shall  render  the  individual  ineligible for community based long term
care services for the period of time specified in subparagraph  five  of
this paragraph. For purposes of this paragraph:
(i)  the purchase of an annuity shall be treated as the disposal of an
asset for less than fair market value unless: the state is named as  the
beneficiary  in  the  first  position  for  at least the total amount of
medical assistance paid on behalf of the  annuitant,  or  the  state  is
named  in  the  second  position  after  a  community spouse or minor or
disabled child and is named in the first position if such  spouse  or  a
representative  of  such  child  disposes of any such remainder for less
than fair market value;  and  the  annuity  meets  the  requirements  of
section 1917(c)(1)(G) of the federal social security act;
(ii)  the  purchase of a life estate interest in another person's home
shall be treated as the disposal of an asset for less than  fair  market

value unless the purchaser resided in such home for a period of at least
one year after the date of purchase;
(iii)  the  purchase  of a promissory note, loan, or mortgage shall be
treated as the disposal of an asset for  less  than  fair  market  value
unless  such  note,  loan, or mortgage meets the requirements of section
1917(c)(1)(I) of the federal social security act.
(4) Notwithstanding the provisions of this  paragraph,  an  individual
shall  not  be  ineligible  for  services  solely  by reason of any such
transfer to the extent that:
(i)  in  the  case  of  an  institutionalized  individual  the   asset
transferred was a home and title to the home was transferred to: (A) the
spouse  of the individual; or (B) a child of the individual who is under
the age of twenty-one years or blind or disabled; or (C)  a  sibling  of
the  individual  who has an equity interest in such home and who resided
in such home for a period of at least one year  immediately  before  the
date  the  individual  became  an institutionalized individual; or (D) a
child of the individual who was residing in such home for a period of at
least two years immediately before the date  the  individual  became  an
institutionalized  individual,  and  who provided care to the individual
which permitted the individual to reside  at  home  rather  than  in  an
institution or facility; or
(ii)  the  assets: (A) were transferred to the individual's spouse, or
to another for the sole benefit of the individual's spouse; or (B)  were
transferred from the individual's spouse to another for the sole benefit
of  the individual's spouse; or (C) were transferred to the individual's
child who is blind or disabled, or to a trust established solely for the
benefit of such child; or (D) were transferred to  a  trust  established
solely  for  the  benefit of an individual under sixty-five years of age
who is disabled; or
(iii) a satisfactory showing is made that: (A) the individual  or  the
individual's  spouse  intended  to  dispose of the assets either at fair
market value, or for other valuable consideration;  or  (B)  the  assets
were  transferred  exclusively  for  a purpose other than to qualify for
medical assistance; or (C) all assets transferred  for  less  than  fair
market value have been returned to the individual; or
(iv)  denial  of  eligibility would cause an undue hardship, such that
application of the  transfer  of  assets  provision  would  deprive  the
individual  of  medical  care  such that the individual's health or life
would be endangered, or would deprive the individual of food,  clothing,
shelter,  or other necessities of life. The commissioner of health shall
develop a hardship waiver process which shall include a  timely  process
for  determining  whether an undue hardship waiver will be granted and a
timely process under which an adverse determination can be appealed. The
commissioner of health shall  provide  notice  of  the  hardship  waiver
process  in writing to those individuals who are required to comply with
the transfer  of  assets  provision  under  this  section.  If  such  an
individual  is an institutionalized individual, the facility in which he
or she is residing shall be permitted to file an undue  hardship  waiver
application  on  behalf  of  such  individual  with  the  consent of the
individual or the personal representative of the individual.
(5) Any transfer made by an  individual  or  the  individual's  spouse
under  subparagraph three of this paragraph shall cause the person to be
ineligible for services for a period  equal  to  the  total,  cumulative
uncompensated  value  of  all  assets  transferred  during  or after the
look-back period, divided  by  the  average  monthly  costs  of  nursing
facility  services  provided  to a private patient for a given period of
time  at  the  time  of  application,  as  determined  pursuant  to  the
regulations  of  the  department. For purposes of this subparagraph, the

average monthly costs of nursing facility services to a private  patient
for  a given period of time at the time of application shall be presumed
to be one hundred twenty percent of the average medical assistance  rate
of  payment  as  of  the  first  day of January of each year for nursing
facilities within the region where the applicant resides, as established
pursuant to paragraph (b) of subdivision sixteen of section twenty-eight
hundred seven-c of the public health law. The  period  of  ineligibility
shall  begin  the first day of a month during or after which assets have
been transferred for less than fair market value, or the first  day  the
otherwise  eligible  individual  is receiving services for which medical
assistance coverage would be available based on an approved  application
for  such  care  but  for  the  provisions of subparagraph three of this
paragraph, whichever is later, and which does not  occur  in  any  other
periods of ineligibility under this paragraph.
(6)  In  the  case  of  an  asset held by an individual in common with
another person or persons in a joint  tenancy,  tenancy  in  common,  or
similar  arrangement,  the  asset, or the affected portion of the asset,
shall be considered transferred by such individual when  any  action  is
taken, either by such individual or by any other person, that reduces or
eliminates such individual's ownership or control of such asset.
(7)  In  the  case  of  a  trust  established  by  the  individual, as
determined pursuant to the regulations of the department,  any  payment,
other  than  a  payment  to or for the benefit of the individual, from a
revocable trust is  considered  to  be  a  transfer  of  assets  by  the
individual  and  any  payment,  other  than to or for the benefit of the
individual, from the portion of an irrevocable trust  which,  under  any
circumstance, could be made available to the individual is considered to
be a transfer of assets by the individual and, further, the value of any
portion  of  an irrevocable trust from which no payment could be made to
the individual under any circumstances is considered to be a transfer of
assets by the individual for purposes of this section as of the date  of
establishment  of the trust, or, if later, the date on which the payment
to the individual is foreclosed.
(f) The commissioner shall promulgate such rules  and  regulations  as
may be necessary to carry out the provisions of this subdivision.
* 6.  a.  The  commissioner  of  health  shall  apply  for  a home and
community-based services waiver pursuant to subdivision (c)  of  section
nineteen  hundred fifteen of the federal social security act in order to
provide home  and  community-based  services,  not  included  under  the
medical assistance program.
b. A person eligible for participation in the waiver program shall:
(i) be twenty-one years of age or under;
(ii)  be  physically  disabled,  according to the federal supplemental
security income program criteria, including but not limited to a  person
who is multiply disabled;
(iii) require the level of care provided by a nursing facility or by a
hospital;
(iv)  be  capable of being cared for in the community if provided with
case management services and/or other services specified in paragraph  f
of  this  subdivision, in addition to other services provided under this
title, as determined by the assessment required by paragraph d  of  this
subdivision;
(v) meet the requirements of paragraph i of this subdivision; and
(vi)   meet   such  other  criteria  as  may  be  established  by  the
commissioner as may be necessary to administer the  provisions  of  this
subdivision in an equitable manner.
c.  Social  services districts shall assess the eligibility of persons
in accordance with  the  provisions  of  paragraphs  b  and  d  of  this

subdivision  and shall refer persons who appear to meet the criteria set
forth in such paragraphs to the commissioner of health for consideration
for participation in the waiver  program  and  final  determinations  of
their eligibility for participation in the waiver program.
d.  The  commissioner  of health shall designate persons to assess the
eligibility of persons in accordance with paragraphs b  and  c  of  this
subdivision under consideration for participation in the waiver program.
Persons  designated  by  such  commissioner  may  include  the  person's
physician,  a  representative  of  the  social  services   district,   a
representative  of  the provider of a long term home health care program
or certified home health agency and, where  appropriate,  the  discharge
coordinator  of  the hospital or nursing facility and such other persons
as such commissioner deems appropriate. The  assessment  shall  include,
but  need  not  be  limited  to,  an  evaluation of the medical, social,
habilitation, and environmental needs of the person and shall  serve  as
the  basis  for  the development and provision of an appropriate plan of
care for the person.
e. Prior to a person's participation in the waiver program, the social
services district or the commissioner of health, as  appropriate,  shall
undertake  or  arrange for the development of a written plan of care for
the provision of services consistent with the level of  care  determined
by  the  assessment,  in  accordance  with  criteria  established by the
commissioner of health.
f. Home and community-based services which may be provided to  persons
specified   in  paragraph  b  of  this  subdivision  include:  (i)  case
management services; (ii) respite services; (iii) home adaptation;  (iv)
hospice  and  palliative  care  services;  and  (v)  such other home and
community-based services, other than room and board, as may be  approved
by the secretary of the federal department of health and human services.
g.  Social services districts shall designate who may provide the home
and  community-based  services  identified  in  paragraph  f   of   this
subdivision, subject to the approval of the commissioner of health.
h.  Notwithstanding  any  other provision of this chapter or any other
law to the contrary, for  purposes  of  determining  medical  assistance
eligibility  for  persons  specified in paragraph b of this subdivision,
the income and resources of responsible relatives shall  not  be  deemed
available for as long as the person meets the criteria specified in this
subdivision.
i.  Before a person may participate in the waiver program specified in
paragraph  a  of  this  subdivision,  the  department  of  health  shall
determine  that  the annual medical assistance expenditures for home and
community-based services for all persons  participating  in  the  waiver
program  would not exceed the annual medical assistance expenditures for
nursing facility and hospital services for  all  such  persons  had  the
waiver not been granted.
j.  The  commissioner  shall  review the plans of care and expenditure
estimates  determined  by  social  services  districts  prior   to   the
participation of any person in the waiver program.
k.  This  subdivision  shall  be  effective  only  if, and as long as,
federal financial participation is available for  expenditures  incurred
under this subdivision.
* NB Repealed March 31, 2028
6-a.  a. The commissioner of health shall apply for a nursing facility
transition and diversion medicaid waiver pursuant to subdivision (c)  of
section  nineteen  hundred fifteen of the federal social security act in
order to provide home and community based services  to  individuals  who
would  otherwise  be  cared  for  in a nursing facility and who would be
considered to be part of an aggregate group of  individuals  who,  taken

together,  will  be  cared  for  at less cost in the community than they
would have otherwise and to provide reimbursement for several  home  and
community   based   services  not  presently  included  in  the  medical
assistance  program.  The  initial application shall provide for no less
than five thousand persons to be eligible to participate in  the  waiver
spread over the first three years and continue to increase thereafter.
b.  A  person  eligible  for  participation  in  the  nursing facility
transition and diversion medicaid waiver program shall:
(i) be at least eighteen years of age;
(ii) be eligible for and in receipt of medicaid authorization for long
term care services, including nursing facility services;
(iii) have resided in a nursing facility and/or have been assessed and
determined to require the level of care provided by a nursing facility;
(iv) be capable of residing in the community if provided with services
specified in paragraph f of  this  subdivision,  in  addition  to  other
services  provided  under  this  title,  as determined by the assessment
required by paragraph d of this subdivision; and
(v) meet such other criteria as may be established by the commissioner
of health as may be  necessary  to  administer  the  provision  of  this
subdivision in an equitable manner.
c.  The  department of health shall develop such waiver application in
conjunction  with  independent  living  centers,  representatives   from
disability  and  senior  groups and such other interested parties as the
department shall determine to be appropriate.
d. The commissioner  of  health  shall  contract  with  not-for-profit
agencies  around the state that have experience with providing community
based services to individuals with disabilities, hereinafter referred to
as regional resource development specialists, who shall  be  responsible
for  initial  contact  with  the  prospective  waiver  participant,  for
assuring the waiver  candidates  have  choice  in  selecting  a  service
coordinator  and other providers, and for assessing applicants including
decisions for eligibility for participation in the waiver, which contain
the original service plan and  all  subsequent  revised  service  plans.
Regional  resource  development  specialists  shall  be  responsible for
approving service plans and  the  department  of  health  shall  provide
technical assistance and oversight.
e.  Prior  to  the  person's  participation  in  the waiver program, a
service coordinator approved by the department of health shall undertake
the development of a written plan of care for the provision of  services
consistent  with  the level of care determined by an initial assessment,
in accordance with criteria established by the commissioner  of  health.
Such  plans  shall  set  forth the type of services to be furnished, the
amount, the frequency and duration of  each  service  and  the  type  of
providers to furnish each service.
f.  Nursing  facility  transition  and diversion services which may be
provided to persons specified in paragraph b of this  subdivision  shall
be established and defined as part of the waiver application development
process  specified  in  paragraph c of this subdivision and may include:
(i) case management services;  (ii)  personal  care;  (iii)  independent
living  skills  training;  (iv) environmental accessibility adaptations;
(v) costs of community transition services; (vi)  assistive  technology;
(vii)  adult  day  health;  (viii)  staff  for  safety  assurance;  (ix)
non-medical  support  services  needed  to  maintain  independence;  (x)
respite  services; and (xi) such other home and community based services
as may be approved by the secretary of the federal department of  health
and human services.
g.  The  department  of  health  shall  designate  who may provide the
nursing  facility  transition  and  diversion  services  identified   in

paragraph  f  of  this  subdivision,  subject  to  the  approval  of the
commissioner of health.
h.  Before  a  person may participate in the nursing transition waiver
program specified in this subdivision, the regional resource development
specialists shall determine that:
(i) the individual is at least eighteen years of age and eligible  for
and  in  receipt  of medicaid authorization for long term care services,
including nursing facility services; and
(ii) the individual resides in a  nursing  facility  and/or  has  been
assessed and determined to require nursing facility care.
7.  a.  The  commissioner  of  health  shall  apply  for  a  home  and
community-based waiver, pursuant to subdivision (c) of section  nineteen
hundred  fifteen of the federal social security act, in order to provide
home and community-based services not presently included in the  medical
assistance program.
b. Persons eligible for participation in the waiver program shall:
(i) be twenty-one years of age or under;
(ii)  have  a  developmental  disability,  as  such term is defined in
subdivision twenty-two of section 1.03 of the mental hygiene law;
(iii) demonstrate complex health care needs, as defined in paragraph c
of this subdivision;
(iv) require the level  of  care  provided  by  an  intermediate  care
facility for the developmentally disabled;
(v)  not  be  hospitalized or receiving care in a nursing facility, an
intermediate care facility for the developmentally disabled or any other
institution;
(vi) be capable of being cared for in the community if  provided  with
case  management  services,  respite  services, home adaptation, and any
other home and community-based services, other than room and  board,  as
may be approved by the secretary of the federal department of health and
human services, in addition to other services provided under this title,
as  determined  by  the  assessment  required  by  paragraph  f  of this
subdivision;
(vii) be ineligible for medical  assistance  because  the  income  and
resources  of  responsible relatives are deemed available to him or her,
causing him or her to exceed the income or  resource  eligibility  level
for such assistance;
(viii)  be  capable  of  being cared for at less cost in the community
than in an intermediate care facility for the developmentally  disabled;
and
(ix)   meet   such  other  criteria  as  may  be  established  by  the
commissioner of health, in conjunction  with  the  commissioner  of  the
office  for  people with developmental disabilities, as may be necessary
to administer the provisions of this subdivision in an equitable manner,
including those criteria established pursuant to  paragraph  d  of  this
subdivision.
c.  For purposes of this subdivision, persons who "demonstrate complex
health care needs", shall be defined  as  persons  who  require  medical
therapies  that  are  designed to replace or compensate for a vital body
function or avert immediate threat to life; that is, persons who rely on
medical devices, nursing care, monitoring or prescribed medical  therapy
for  the  maintenance  of  life  over a period expected to extend beyond
twelve months.
d. The commissioner of health, in conjunction with the commissioner of
the office for people with developmental disabilities,  shall  establish
selection criteria to ensure that participants are those who are most in
need  and  reflect  an equitable geographic distribution. Such selection
criteria shall include, but not be limited  to,  the  imminent  risk  of

institutionalization,  the financial burden imposed upon the family as a
result of the child's health care needs, and the level of stress  within
the  family unit due to the unrelieved burden of caring for the child at
home.
e.  Social  services  districts,  in  consultation with the office for
people with developmental disabilities, shall assess the eligibility  of
persons  in  accordance  with  the  provisions  of  paragraph  b of this
subdivision, as well  as  the  selection  criteria  established  by  the
commissioner  of  health  and  the commissioner of the office for people
with developmental disabilities as  required  by  paragraph  d  of  this
subdivision.
f. The commissioner of health, in conjunction with the commissioner of
the  office  for people with developmental disabilities, shall designate
persons to assess the eligibility of  persons  under  consideration  for
participation   in  the  waiver  program.  Persons  designated  by  such
commissioners may include the person's physician,  a  representative  of
the   social   services  district,  representative  of  the  appropriate
developmental disabilities services office and such other persons as the
commissioners deem appropriate. The assessment shall include,  but  need
not   be  limited  to,  an  evaluation  of  the  health,  psycho-social,
developmental, habilitation and environmental needs of  the  person  and
shall  serve  as  the  basis  for  the  development  and provision of an
appropriate plan of care for such person.
g. Prior to a person's participation in the waiver program, the office
for people with developmental disabilities shall  undertake  or  arrange
for  the  development  of  a  written  plan of care for the provision of
services consistent with the level of care determined by the assessment,
in accordance with criteria established by the commissioner  of  health,
in  consultation  with  the  commissioner  of the office for people with
developmental disabilities. Such plan of care shall be reviewed by  such
commissioners  prior to the provision of services pursuant to the waiver
program.
h. Home and community-based services which may be provided to  persons
specified in paragraph b of this subdivision shall, in addition to those
services  otherwise  authorized,  include  (i) case management services;
(ii) respite services; (iii) home adaptation, and (iv) such  other  home
and  community-based  services,  other  than  room  and board, as may be
approved by the secretary of the federal department of health and  human
services.
i.  The  office  for  people  with  developmental  disabilities  shall
designate  who  may  provide  the  home  and  community-based   services
identified  in  paragraph h of this subdivision, subject to the approval
of the commissioner of health.
j. Notwithstanding any other provision  of  this  chapter  other  than
subdivision  six  of  this section or any other law to the contrary, for
purposes of  determining  medical  assistance  eligibility  for  persons
specified  in  paragraph b of this subdivision, the income and resources
of a responsible relative shall not be deemed available for as  long  as
the person meets the criteria specified in this subdivision.
k.  Before a person may participate in the waiver program specified in
paragraph  a  of  this  subdivision,  the   office   for   people   with
developmental  disabilities  shall  determine that there is a reasonable
expectation that the annual medical  assistance  expenditures  for  such
person under the waiver would not exceed the expenditures for care in an
intermediate  care  facility for the developmentally disabled that would
have been made had the waiver not been granted.
l. The commissioner of health, in conjunction with the commissioner of
the office for people with developmental disabilities, shall review  the

plans  of  care  and expenditure estimates prior to the participation of
any person in the waiver program.
m.  Within one year of federal waiver approval, and on an annual basis
thereafter, until such time as the waiver program is fully  implemented,
the  commissioner of health, in conjunction with the commissioner of the
office for people with developmental disabilities, shall report  on  the
status  of  the waiver program to the governor and the legislature. Such
report shall specify the number of children participating in the  waiver
program,  the  geographic distribution of those so participating, health
profiles,  service  costs  and  length  of  time   the   children   have
participated  in  the  waiver  program.  The  report  shall also provide
follow-up information on children who have  withdrawn  from  the  waiver
program, including data on residential program placements.
n.  This  subdivision  shall  be  effective  only  if, and as long as,
federal financial participation is available for  expenditures  incurred
under this subdivision.
7-a.   a.   The  commissioner  of  health  in  consultation  with  the
commissioner of developmental disabilities shall apply for  a  home  and
community-based  waiver, pursuant to subdivision (c) of section nineteen
hundred fifteen of the federal social security act, in order to  provide
home  and  community-based  services  for  a  population of persons with
developmental disabilities, as such term is defined in section  1.03  of
the mental hygiene law.
b. Persons eligible for participation in the waiver program shall:
(i)  have  a  developmental  disability  as  such  term  is defined in
subdivision twenty-two of section 1.03 of the mental hygiene law;
(ii) meet the level of care criteria provided by an intermediate  care
facility for the developmentally disabled;
(iii) be eligible for Medicaid;
(iv)  live  at  home  or in an individualized residential alternative,
community residence or family care home, operated  or  licensed  by  the
office for people with developmental disabilities;
(v)  be  capable  of being cared for in the community if provided with
such  services  as  respite,  home  adaptation,  or   other   home   and
community-based  services, other than room and board, as may be approved
by the secretary of the federal department of health and human services,
in addition to other services provided under this title,  as  determined
by the assessment required by paragraph c of this subdivision;
(vi)  have  a  demonstrated  need  for home and community based waiver
services; and
(vii)  meet  such  other  criteria  as  may  be  established  by   the
commissioner   of   health   and   the   commissioner  of  developmental
disabilities, as may be necessary to administer the provisions  of  this
subdivision.
c.  The  commissioner  of  developmental disabilities shall assess the
eligibility of persons enrolled, or seeking to  enroll,  in  the  waiver
program.  The  assessment  shall include, but need not be limited to, an
evaluation of the health, psycho-social, developmental, habilitation and
environmental needs of the person and shall serve as the basis  for  the
development and provision of an appropriate person centered plan of care
for such person.
d.  The  office  for  people  with  developmental  disabilities  shall
undertake or arrange for the development of a  written  person  centered
plan  of  care  for  each  person  enrolled  in  the waiver. Such person
centered plan of care shall describe the provision of home and community
based waiver services consistent with the assessment for each person.
e. The office for people with developmental disabilities shall  review
the  person centered plan of care and authorize those home and community

based services to be included in  the  person  centered  plan  of  care,
taking  into  account  the  person's assessed needs, valued outcomes and
available resources.
f.  The  commissioners  of developmental disabilities and health shall
determine quality standards for organizations providing  services  under
such  waiver  and shall authorize organizations that meet such standards
to provide such services.
g. The  commissioner  of  developmental  disabilities  or  health  may
promulgate   rules  and  regulations  as  necessary  to  effectuate  the
provisions of this section.
h. This subdivision shall be  effective  only  if,  and  as  long  as,
federal  financial  participation is available for expenditures incurred
under this subdivision.
7-b. Services and needs assessment. The assessment completed  pursuant
to  subdivision  seven-a of this section shall be based upon a valid and
reliable  assessment  tool.  The  assessment  shall  also   include   an
evaluation  of  the  individual's  home  environment,  including but not
limited to, the ability of family and/or caregivers to provide  supports
outside  of  those  within  the  waiver,  including  but not limited to,
activities of daily living.
7-c. The commissioner of health in consultation with the  commissioner
of  developmental  disabilities  is authorized to submit the appropriate
waivers, including, but not limited to,  those  authorized  pursuant  to
section  eleven  hundred  fifteen of the federal social security act, in
order to achieve the purposes of high-quality and  integrated  care  and
services for a population of persons with developmental disabilities, as
such  term  is  defined  in section 1.03 of the mental hygiene law. Such
waiver applications  shall  be  executed  consistent  with  subdivisions
seven,  seven-a,  and  seven-b  of  this  section,  to  the extent those
sections comply with the requirements of section eleven hundred  fifteen
of the federal social security act. Nothing in subdivision seven of this
section  shall  prevent the commissioner of health, in consultation with
the commissioner of developmental disabilities, from  submitting  waiver
applications  expanding eligibility under such waivers to children under
eighteen years or age who are eligible for medical assistance.
8. Notwithstanding any inconsistent provision of this chapter  or  any
other  law  to  the  contrary,  income and resources which are otherwise
exempt from consideration in  determining  a  person's  eligibility  for
medical care, services and supplies available under this title, shall be
considered  available  for  the  payment or part payment of the costs of
such medical care, services and supplies as required by federal law  and
regulations.
9.  a.  The commissioner shall apply for a general waiver, pursuant to
subdivision (c) of section  nineteen  hundred  fifteen  of  the  federal
social  security act, in order to provide medical assistance for persons
specified in paragraphs b and c of this  subdivision  and  reimbursement
for  several home and community-based services not presently included in
the medical assistance program.  If  granted  the  general  waiver,  the
commissioner  may  authorize  such persons to receive services under the
general waiver to the extent funds are appropriated for transfer to  the
department  for  the state share of medical assistance payments for such
waiver services from the budget of the office of mental health.
b. Persons eligible for inclusion in the general waiver shall:
(i) be under twenty-one years of age;
(ii) have a mental illness, as such term  is  defined  in  subdivision
twenty of section 1.03 of the mental hygiene law;
(iii)  demonstrate  complex  health  or  mental  health care needs, as
defined in paragraph d of this subdivision;
(iv) require the level of care provided by a hospital  as  defined  in
subdivision ten of section 1.03 of the mental hygiene law which provides
intermediate  or  long-term  care  and treatment, or within the past six
months have been hospitalized for at least thirty consecutive  days,  or
have  resided  in  such  a  hospital  for  at  least  one hundred eighty
consecutive days;
(v) be capable of being cared for in the community  if  provided  with
case  management  services,  clinical  interventions,  crisis  services,
social training, rehabilitation services, counseling, respite  services,
medication     therapy,     partial    hospitalization,    environmental
modifications, educational and related services, and/or  medical  social
services, in addition to other services, as determined by the assessment
required  by paragraph g of this subdivision and included in the written
plan of care developed pursuant to paragraph h of this subdivision;
(vi) be eligible or, if discharged,  would  be  eligible  for  medical
assistance,  or are ineligible for medical assistance because the income
and resources of responsible relatives are or, if discharged,  would  be
deemed  available  to  such persons causing them to exceed the income or
resource eligibility level for such assistance;
(vii) be capable of being cared for at less cost in the community than
in a hospital, as defined in subdivision ten  of  section  1.03  of  the
mental hygiene law; and
(viii)  meet  such  other  criteria  as  may  be  established  by  the
commissioner of mental health, in conjunction with the commissioner,  as
may  be necessary to administer the provisions of this subdivision in an
equitable manner,  including  those  criteria  established  pursuant  to
paragraph e of this subdivision.
c. Persons eligible for inclusion in the general waiver shall meet all
the  requirements  set  forth  in  subparagraphs  (i)  through (viii) of
paragraph b of this subdivision; and shall be eligible for,  shall  have
applied  for,  or shall reside in an institutional placement including a
hospital as defined in subdivision ten of section  1.03  of  the  mental
hygiene law which provides intermediate or long-term care and treatment.
d.  For purposes of this subdivision, persons who "demonstrate complex
health or mental health care needs", shall be  defined  as  persons  who
require  medical or mental health therapies, care or treatments that are
designed to replace or compensate for a vital functional  limitation  or
to  avert  an  immediate  threat  to  life; that is, persons who rely on
mental health care, nursing care, monitoring, or prescribed  medical  or
mental  health  therapy  for  the  maintenance of quality of life over a
period expected to extend beyond twelve months.
e.  The  commissioner  of  mental  health,  in  conjunction  with  the
commissioner,   shall   establish  selection  criteria  to  ensure  that
participants are those who are most in  need.  Such  selection  criteria
shall   include,   but  not  be  limited  to:  the  need  for  continued
hospitalization or the risk of  hospitalization;  the  financial  burden
imposed upon the family, or which would be imposed upon the family if an
institutionalized  participant were to be discharged, as a result of the
child's health or mental health care needs; and the level of  stress  or
the  anticipated  level  of  stress  within  the  family unit due to the
unrelieved burden of caring for the child at home.
f. Social services districts, in conjunction with the office of mental
health and the local governmental unit as defined in  section  41.03  of
the  mental  hygiene  law, shall determine the eligibility of persons in
accordance  with  the  provisions  of  paragraphs  b  and  c   of   this
subdivision,  as  well  as  the  selection  criteria  established by the
commissioner and the  commissioner  of  mental  health  as  required  by
paragraph e of this subdivision.
g.  The  commissioner  of  mental  health,  in  conjunction  with  the
commissioner, shall designate persons  to  undertake  an  assessment  to
determine  the  eligibility of persons under consideration for inclusion
in the general waiver. Persons  designated  by  such  commissioners  may
include the potentially eligible person's physician, a representative of
the  local  governmental  unit as defined in section 41.03 of the mental
hygiene law, a representative of the appropriate  hospital  or  regional
office  of  the  office  of mental health, and such other persons as the
commissioners deem appropriate. The assessment shall include, but not be
limited to, an evaluation of the mental health,  health,  psycho-social,
rehabilitation and environmental needs of the person, and shall serve as
the  basis  for  the development and provision of an appropriate plan of
care for such person.
h. Prior to a person's inclusion in the general waiver, the office  of
mental  health  and  the  local  governmental unit as defined in section
41.03 of the mental hygiene law, shall  undertake  or  arrange  for  the
development  of  a  written  plan  of  care, including identification of
service  providers  if  known,  for  the  provision   of   services   in
consultation  with  the  individual and their family whenever clinically
appropriate, consistent  with  the  level  of  care  determined  by  the
assessment,  in accordance with criteria established by the commissioner
of mental health, in consultation with the commissioner. If  a  provider
of services is identified in a written plan of care, such provider shall
be  designated pursuant to paragraph j of this subdivision. Such plan of
care shall be  reviewed  by  such  commissioners  and  approved  by  the
commissioner  of  mental  health  prior  to  the  provision  of services
pursuant to the general waiver.
i. Home and community-based services which may be provided to  persons
specified  in  paragraphs b and c of this subdivision shall, in addition
to those services otherwise authorized, include but are not  limited  to
(i)  case management services; (ii) clinical interventions; (iii) crisis
services;  (iv)  social  training;  (v)  rehabilitation  services;  (vi)
counseling;  (vii)  respite  services;  (viii)  medication therapy; (ix)
partial   hospitalization;   (x)   environmental   modifications;   (xi)
educational  and  related  services;  (xii) medical social services; and
other services included in the written plan of care  developed  pursuant
to paragraph h of this subdivision.
j.  The  office  of  mental  health,  in  conjunction  with the social
services district and the local governmental unit, shall  designate  who
may   provide  the  home  and  community-based  services  identified  in
paragraph i of this subdivision.
k.  Notwithstanding  any  provision  of  this   chapter   other   than
subdivision  six  or  seven  of  this  section,  or any other law to the
contrary, for purposes of determining medical assistance eligibility for
persons specified in paragraphs b and c of this subdivision, the  income
and  resources  of  a responsible relative shall not be deemed available
for as  long  as  the  person  meets  the  criteria  specified  in  this
subdivision.
l.  Before a person may participate in the general waiver specified in
paragraph a of this subdivision, the social services  district  and  the
office  of  mental  health  shall  determine  that there is a reasonable
expectation that the annual medical  assistance  expenditures  for  such
person  under the waiver would not exceed the expenditures for care in a
hospital, as defined in subdivision ten of section 1.03  of  the  mental
hygiene law, that would have been made had the waiver not been granted.
m.  The  commissioner,  in conjunction with the commissioner of mental
health, shall review the  expenditure  estimates  determined  by  social

services  districts  and  the  office  of  mental  health,  prior to the
inclusion of any person in the general waiver.
n.  Within one year of federal waiver approval, and on an annual basis
thereafter, until such time as the  waiver  is  fully  implemented,  the
commissioner  of  mental  health,  in conjunction with the commissioner,
shall report on the status of the general waiver to  the  governor,  the
legislature,  including  the  respective  chairpersons of the senate and
assembly committees of mental  health  and  the  chairs  of  the  senate
finance  and  assembly ways and means committees and the director of the
division of the budget. Such report shall specify the number of children
included in the waiver, the geographic distribution of  those  included,
health  and mental health profiles, utilization and costs of services by
region including costs avoided in residential treatment  facilities  and
inpatient facilities operated by the office of mental health, the length
of  time  the  children  have  participated  in  the waiver and regional
information on the status of waiting lists for waiver services  and  for
services  in  residential  settings, where appropriate. The report shall
also provide follow-up information on children who have  withdrawn  from
the waiver, including data on residential program placements.
o.  This  subdivision  shall  be effective if, and as long as, federal
financial participation is available  for  expenditures  incurred  under
this subdivision.
p.  Nothing  herein  shall  be  construed  to create an entitlement to
services  under  the  approved  general  waiver   implemented   by   the
commissioner in accordance with this subdivision.
11. The commissioner of health shall, consistent with this title, make
any  necessary  amendments  to  the  state  plan  for medical assistance
submitted pursuant to section three hundred sixty-three-a of this title,
in order to ensure federal financial participation in expenditures under
subparagraphs twelve and thirteen of paragraph (a) of subdivision one of
this  section.  Notwithstanding  any  other  provision  of  law  to  the
contrary,  medical assistance under subparagraphs twelve and thirteen of
paragraph (a) of subdivision one of this section shall be provided  only
to  the  extent  permitted under federal law, if, for so long as, and to
the extent that federal financial participation is available therefor.
12. (a) Notwithstanding any provision of  law  to  the  contrary,  the
commissioner  of health, in consultation with the office of children and
family services, shall  develop  and  submit  applications  for  waivers
pursuant  to  section  nineteen  hundred  fifteen  of the federal social
security  act  as  may  be  necessary  to  provide  medical  assistance,
including  services  not  presently  included  in the medical assistance
program, for persons described in paragraph (b) of this subdivision.  If
granted  such  waivers,  the  commissioner  of health, on the advice and
recommendation of the commissioner of children and family services,  may
authorize  such  persons  to receive such assistance to the extent funds
are appropriated therefor.
(b) Persons eligible for inclusion in the waiver  program  established
by  this  subdivision shall be residents of New York state under the age
of twenty-one years, who are eligible for care in a medical institution,
who have had the responsibility for their care and placement transferred
to the local commissioner of a social services district or to the office
of children and family  services  as  adjudicated  juvenile  delinquents
under  article  three  of  the family court act, where placement is in a
non-secure setting, and who:
(i) have a diagnosis of  a  mental  disorder  under  the  most  recent
edition of the Diagnostic and Statistical Manual of Mental Disorders;
(ii)  have  a  diagnosis  of  a developmental disability as defined in
section 1.03 of the mental hygiene law; or
(iii) have a physical disability.
(c)  Services  which may be provided to persons specified in paragraph
(b) of this subdivision, in addition to services  otherwise  authorized,
may include but are not limited to:
(i)  services  that  will permit children to be better served, prevent
institutionalization,  and  allow   utilization   at   lower-levels   of
institutional care;
(ii) case management services;
(iii) respite services;
(iv) medical social services;
(v) nutritional counseling;
(vi) respiratory therapy;
(vii) home adaptation and/or environmental modifications;
(viii) clinical interventions;
(ix) crisis services;
(x) social training;
(xi) habilitation and rehabilitation services;
(xii) counseling;
(xiii) medication therapy;
(xiv) partial hospitalization;
(xv) educational and related services; and
(xvi) other services included in the written plan of care.
(d)  Notwithstanding any provision of this chapter or any other law to
the contrary, for purposes of determining medical assistance eligibility
for persons specified in paragraph (b) of this subdivision,  the  income
and  resources  of  a  legally  responsible relative shall not be deemed
available for as long as the person meets the criteria specified in this
subdivision; provided, however, that such income shall  continue  to  be
deemed  unavailable  should responsibility for the care and placement of
the person be returned to his or her parent or other legally responsible
person.
(e) Before a person may participate in the waiver program  established
by  this  subdivision,  the  social  services  district that is fiscally
responsible for the person shall determine that there  is  a  reasonable
expectation  that annual medical assistance expenditures for such person
will not exceed federal requirements.
(f) The eligibility and benefits authorized by this subdivision  shall
be  applicable  if,  and  as long as, federal financial participation is
available  for  expenditures  incurred  under  this   subdivision.   The
eligibility  and benefits authorized by this subdivision shall not apply
unless all necessary approvals under federal  law  and  regulation  have
been obtained to receive federal financial participation in the costs of
services provided pursuant to this subdivision.
(g)  Nothing  in  this  subdivision  shall  be  construed to create an
entitlement to services under the waiver  program  established  by  this
subdivision.
(h)  A  person participating in the waiver program established by this
subdivision may continue participation in the program  until  it  is  no
longer  consistent  with  the  plan  of  care,  or until age twenty-one,
whichever occurs earlier, notwithstanding the person's status as  having
been discharged from the care and placement of the local commissioner of
a  social  services  district or the commissioner of children and family
services,  including  adoption   or   participation   in   the   kinship
guardianship  assistance  program under title ten of article six of this
chapter.
13. The commissioner of health, in consultation with the  commissioner
of  the office of children and family services, shall make any available
amendments to the state plan for medical assistance  submitted  pursuant

to  section  three  hundred  sixty-three-a  of  this  title,  or,  if an
amendment is not possible, develop and submit  an  application  for  any
waiver  under  the  federal social security act that may be available to
provide   medical   assistance  for  those  children  receiving  kinship
guardianship assistance payments under title ten of article six of  this
chapter  who  are not automatically eligible for such medical assistance
under title IV-E of the federal social security act.
14. The commissioner of health may make any  available  amendments  to
the  state  plan  for  medical  assistance submitted pursuant to section
three hundred sixty-three-a of this title, or, if an  amendment  is  not
possible,  develop  and submit an application for any waiver or approval
under the federal social security act that may be necessary to disregard
or exempt an amount of income, for the purpose of assisting with housing
costs, for individuals receiving coverage of nursing  facility  services
under this title, other than short-term rehabilitation services, and for
individuals  in receipt of medical assistance while in an adult home, as
defined in subdivision twenty-five of section two of this chapter,  who:
are  (i)  discharged to the community; and (ii) if eligible, enrolled or
required to enroll and have initiated the process of enrolling in a plan
certified pursuant to section forty-four hundred three-f of  the  public
health  law;  and  (iii)  do  not  meet the criteria to be considered an
"institutionalized  spouse"  for  purposes  of  section  three   hundred
sixty-six-c of this title.
15.  The commissioner may contract with one or more entities to engage
in education, outreach services, and facilitated  enrollment  activities
for  aged,  blind, and disabled persons who may be eligible for coverage
under this title.
* 16. (a) The commissioner of  health  is  authorized  to  submit  the
appropriate  waivers  and/or  any  other  required  requests for federal
approval, including but not limited  to,  those  authorized  in  section
eleven  hundred  fifteen of the federal social security act, in order to
establish expanded medical assistance eligibility for  working  disabled
individuals.  Such waiver applications shall be executed consistent with
paragraphs (b), (c), (d) and (e) of  this  subdivision,  to  the  extent
those  sections  comply  with the requirements of section eleven hundred
fifteen  of   the   federal   social   security   act.   Notwithstanding
subparagraphs  five  and six of paragraph (c) of subdivision one of this
section and subdivision twelve of section three hundred sixty-seven-a of
this title, or any other provision of law to the  contrary,  if  granted
such  waiver,  the commissioner of health may authorize eligible persons
to receive medical assistance pursuant to the waiver if, for so long as,
and to the extent that, financial participation is  available  therefor.
The  waiver  application shall provide for thirty thousand persons to be
eligible to participate in such waiver.
(b) Individuals eligible for participation in such waiver shall:
(i)  be  a  disabled  individual,  defined  as  having   a   medically
determinable  impairment  of sufficient severity and duration to qualify
for benefits under Titles II or XVI of the social security act;
(ii) be at least sixteen years of age;
(iii) be otherwise eligible for medical assistance benefits,  but  for
earnings and/or resources in excess of the allowable limit;
(iv)   have  net  available  income,  determined  in  accordance  with
subdivision two of this section, that does not exceed two  thousand  two
hundred fifty percent of the applicable federal poverty line, as defined
and  updated  by  the  United  States  department  of  health  and human
services;
(v) have resources, as defined in paragraph (e) of subdivision two  of
section  three  hundred sixty-six-c of this title, other than retirement
accounts, that do not exceed three hundred thousand dollars;
(vi) contribute to the cost of medical assistance provided pursuant to
this paragraph in accordance with paragraph (d) of this subdivision; and
(vii)   meet  such  other  criteria  as  may  be  established  by  the
commissioner as may be necessary to administer the  provisions  of  this
subdivision in an equitable manner.
(c)  An  individual  at  least  sixteen years of age who: is employed;
ceases to be eligible for  participation  in  such  waiver  pursuant  to
paragraph  (b)  of  this  subdivision  because  the person, by reason of
medical improvement, is determined at the time of a regularly  scheduled
continuing disability review to no longer be certified as disabled under
the   social   security  act;  continues  to  have  a  severe  medically
determinable impairment, to be determined in accordance with  applicable
federal  regulations;  and contributes to the cost of medical assistance
provided pursuant to this paragraph in accordance with paragraph (d)  of
this  subdivision,  shall  be eligible for participation in such waiver.
For purposes of this paragraph, a person is considered to be employed if
the person is earning at least the applicable minimum wage under section
six of the federal fair labor standards act and working at  least  forty
hours per month.
(d)  Prior  to receiving medical assistance pursuant to such waiver, a
person whose net available income  is  greater  than  or  equal  to  two
hundred fifty percent of the applicable federal poverty line shall pay a
monthly premium, in accordance with a procedure to be established by the
commissioner, provided that no enrollee shall pay a monthly premium that
exceeds  exceed  eight  and  one-half  percent of the enrollee's monthly
income. The amount of such premium for  a  person  whose  net  available
income  is  greater  than  or  equal to two hundred fifty percent of the
applicable federal poverty line, but less than three hundred percent  of
the   applicable  federal  poverty  line  shall  be  three  hundred  and
forty-seven dollars but shall not exceed four percent of the  enrollee's
monthly  income.  The  amount  of  such  premium  for a person whose net
available income is greater than or equal to three  hundred  percent  of
the  applicable federal poverty line, but less than four hundred percent
of the applicable federal poverty line shall be  five  hundred  eighteen
dollars  but  shall  not  exceed  six  percent of the enrollee's monthly
income. The amount of such premium for  a  person  whose  net  available
income  is  greater  than  or  equal  to  four  hundred  percent  of the
applicable federal poverty line, but less than five hundred  percent  of
the   applicable  federal  poverty  line  shall  be  seven  hundred  and
seventy-nine dollars but shall not exceed eight and one-half percent  of
the  enrollee's  monthly income. The amount of such premium for a person
whose net available income is equal to  or  greater  than  five  hundred
percent  of  the  applicable  federal poverty line shall be one thousand
thirty-three dollars but shall not exceed eight and one-half percent  of
the  enrollee's  monthly  income.  No  premium  shall be required from a
person whose net available income is less than two hundred fifty percent
of the applicable federal poverty line.
(e) Notwithstanding any other provision of this section or  any  other
law  to  the  contrary,  for  purposes of determining medical assistance
eligibility for persons specified  in  paragraph  (b)  or  (c)  of  this
subdivision, the income and resources of responsible relatives shall not
be  deemed  available  for  as  long  as  the  person meets the criteria
specified in this subdivision.
* NB Effective January 1, 2025