§  366.  Eligibility.  1. Medical assistance shall be given under this
  title to a person who requires such assistance and who  (a)  either  (1)
  meets  the  eligibility  requirements  of  the  safety net program as it
  existed on the first day  of  November,  nineteen  hundred  ninety-seven
  except  that:  (i)  such person may have income up to one hundred thirty
  percent of the highest amount that ordinarily would have been paid to  a
  person  without  any income or resources under the safety net program as
  it existed on the first day of November, nineteen hundred  ninety-seven,
  to  be  increased  annually  by  the  same  percentage as the percentage
  increase in the federal consumer price index;
    (ii) such person shall not be subject to a resource test;
    (iii) a person whose income is within the limit set  forth  in  clause
  (i)  of  this  subparagraph  shall  be  deemed  to  have unmet needs for
  purposes of the eligibility requirements of the safety net program as it
  existed on the first day of November, nineteen hundred ninety-seven;
    (iv) the requirements of  subdivision  four  of  section  one  hundred
  thirty-two  and  subdivision three of section one hundred fifty-eight of
  this chapter shall not apply to such person;
    (v) the requirements of title nine-B of this article shall  not  apply
  to such person; and
    (vi)  an  otherwise  eligible  person  who  is  subject  to a sanction
  pursuant to section three hundred forty-two of this article shall remain
  eligible for medical assistance; or
    (2) is receiving  or  is  eligible  to  receive  federal  supplemental
  security  income  payments  and/or additional state payments, so long as
  there is in effect an agreement between the state and the  secretary  of
  health,  education  and  welfare,  pursuant  to  section  three  hundred
  sixty-three-b  of  this  title,  for  the   federal   determination   of
  eligibility  of aged, blind and disabled persons for medical assistance,
  and so long as such secretary requires, as a condition of entering  into
  such agreement, that such person be eligible for medical assistance; or
    (3)  is  a  child under the age of twenty-one years receiving care (A)
  away from his own home in accordance with title two of  article  six  of
  this  chapter;  (B) during the initial thirty days of placement with the
  division for youth pursuant to section 353.3 of the  family  court  act;
  (C)  in  an  authorized  agency  when  placed  pursuant to section seven
  hundred fifty-six or 353.3 of the family court act; or (D) in  residence
  at  a  division  foster family home or a division contract home, and has
  not, according to the criteria promulgated by the department, sufficient
  income, including available support from his parents, to meet all  costs
  of required medical care and services available under this title; or
    (3-a)  is  a child under the age of twenty-one years who was in foster
  care under the responsibility of the state  on  his  or  her  eighteenth
  birthday;  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; or
    (4) is receiving care, in the case of and in connection with the birth
  of an out of wedlock child, in accordance with title two of article  six
  of  this  chapter, and has not, according to the criteria promulgated by
  the department, sufficient  income,  including  available  support  from
  responsible  relatives,  to  meet all costs of required medical care and
  services available under this title; or
    (5) 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; or
    (5-a)  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  or  resources,  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; or
    (6) is 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; or
    (7) is a person at least twenty-one years of age but under the age  of
  sixty-five  who  is  not  eligible  for  medical  assistance pursuant to
  subparagraph eight or nine of this paragraph (i) who is the parent of  a
  dependent child under the age of twenty-one and (ii) who lives with such
  child  and  (iii)  whose net income, without deducting the amount of any
  incurred medical expenses, do not exceed the net income  exemptions  set
  forth  in subparagraph seven of paragraph (a) of subdivision two of this
  section; or
    * (8) is a member of a family which contains a dependent child  living
  with  a caretaker relative, which has net available income not in excess
  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, to be increased annually by the
  same percentage as the percentage increase in the federal consumer price
  index;  for purposes of this subparagraph, the net available income of a
  family  shall  be  determined  using  the  methodology  of  the   family
  assistance  program  as it exists on the first day of November, nineteen
  hundred ninety-seven, except that no part  of  the  methodology  of  the
  family  assistance  program  will be used which is more restrictive than
  the methodology of the aid to dependent children program as  it  existed
  on  the sixteenth day of July, nineteen hundred ninety-six; for purposes
  of this subparagraph, the term dependent  child  means  a  person  under
  twenty-one  years  of age 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; or
    * NB Effective until April 1, 2010
    * (8)  is a member of a family which contains a dependent child living
  with a caretaker relative, which has: (i) subject to the approval of the
  federal Centers for Medicare and Medicaid services, gross income not  in
  excess  of  one  hundred  percent of the federal income official poverty
  line  (as  defined  and  annually  revised  by  the  federal  office  of
  management  and  budget)  for  a family of the same size as the families
  that include the children or (ii) in the absence of such  approval,  net

  available  income  not  in  excess  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, to
  be increased annually by the same percentage as the percentage  increase
  in  the federal consumer price index; for purposes of this subparagraph,
  the net available income of a  family  shall  be  determined  using  the
  methodology  of  the family assistance program as it exists on the first
  day of November, nineteen hundred ninety-seven, except that no  part  of
  the  methodology  of the family assistance program will be used which is
  more restrictive than the methodology of the aid to  dependent  children
  program  as  it  existed  on the sixteenth day of July, nineteen hundred
  ninety-six; for purposes of this subparagraph, the term dependent  child
  means a person under twenty-one years of age 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; or
    * NB Effective April 1, 2010
    * (8-a) is an individual who is at least nineteen but under twenty-one
  years  of  age and is a member of a household which has gross income not
  in excess of one hundred percent of the federal income official  poverty
  line  (as  defined  and  annually  revised  by  the  federal  office  of
  management and budget) for a household of the same size; or
    * NB Effective April 1, 2010
    (9) is a member of a family which contains a  child  under  twenty-one
  years  of  age,  which  meets the financial eligibility requirements for
  medical assistance pursuant to subparagraph eight of this paragraph, and
  which is ineligible for such assistance because no child in  the  family
  meets  the  definition  of  a dependent child or is a pregnant woman who
  meets the eligibility requirements for medical  assistance  pursuant  to
  subparagraph  eight  of  this paragraph and who is ineligible because no
  dependent child resides with her; or
    (10) is a child who is under twenty-one  years  of  age,  who  is  not
  living  with  a  caretaker relative, who has net available income not in
  excess of the income standards of the family assistance  program  as  it
  existed on the first day of November, nineteen hundred ninety-seven; for
  purposes of this subparagraph, the child's net available income shall be
  determined  using the methodology of the family assistance program as it
  existed on the first day of  November,  nineteen  hundred  ninety-seven,
  except  that no part of the methodology of the family assistance program
  will be used which is more restrictive than the methodology of  the  aid
  to  dependent  children  program  as  it existed on the sixteenth day of
  July, nineteen hundred ninety-six; or
    (11) for purposes of receiving family planning services  eligible  for
  reimbursement  by the federal government at a rate of ninety percent, is
  not otherwise eligible for medical assistance and whose  income  is  two
  hundred  percent  or  less  of  the  comparable  federal income official
  poverty line (as defined and  annually  revised  by  the  United  States
  department  of  health and human services); provided, however, that such
  ninety percent limitation shall not apply to those  services  identified
  by  the  commissioner  of  health  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.
  The commissioner of health shall submit whatever waiver applications  as
  may be necessary to receive federal financial participation for services
  provided under this subparagraph and the provisions of this subparagraph
  shall   be   effective   if  and  so  long  as  such  federal  financial
  participation shall be available; or

    (12) is a disabled person 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, that do not exceed the amount described  in  subparagraph
  four  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; or
    (13) is a person 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  twelve  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; and
    (b) 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
    (c)  except  as  provided in subparagraph six of paragraph (a) of this
  subdivision or subdivision one-a of this section, is not  an  inmate  or
  patient  in  an  institution  or facility wherein medical assistance for
  needy persons may not be provided in accordance with applicable  federal
  or state requirements; and
    (d)  is  not  a patient in a public institution operated primarily for
  the treatment of tuberculosis or care of the mentally  disabled,  except
  as  follows: (1) is sixty-five years of age or older and is a patient in
  any such institution; or (2) is under twenty-one years  of  age  and  is
  receiving  in-patient  psychiatric  services  in  a  public  institution
  operated primarily for the care of the mentally disabled; or  (3)  is  a
  patient  in  a public institution operated primarily for the care of the
  mentally retarded and 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; or (4) if a patient in an institution operated
  by the state department of mental hygiene, is under care in  a  hospital
  while on release from such institution for the purpose of receiving care
  in  such  hospital; or (5) is a person residing in a community residence
  or a residential care center for adults; and

    No person who is otherwise eligible for medical assistance shall  lose
  eligibility  for  such  assistance  as  a  result of the imposition of a
  sanction pursuant to section three hundred forty-two of this chapter.
    1-a.  Notwithstanding  any other provision of law, in the event that a
  person who is an inmate of a state or local  correctional  facility,  as
  defined  in section two of the correction law, was in receipt of medical
  assistance pursuant to this title immediately prior to being admitted to
  such facility, such person shall remain eligible for medical  assistance
  while  an  inmate,  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 inmate; provided, however, that
  nothing herein shall be deemed as preventing the  provision  of  medical
  assistance  for  inpatient hospital services furnished to an inmate at a
  hospital outside of the premises of such correctional facility,  to  the
  extent  that  federal financial participation is available for the costs
  of such services. Upon release from such  facility,  such  person  shall
  continue  to  be  eligible  for  receipt of medical assistance furnished
  pursuant to this title until such time as the person is determined to no
  longer be eligible  for  receipt  of  such  assistance.  To  the  extent
  permitted by federal law, the time during which such person is an inmate
  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 of  mental  retardation  and
  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 of  mental  retardation  and
  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.
    * (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  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  banking  department,  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.
    * 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.  (a)  (i)  Notwithstanding  any other provision of law, each family
  which was eligible for medical assistance pursuant to subparagraph eight
  or nine of paragraph (a) 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 because  of  hours  of,  or
  income from, employment of the caretaker relative, or because of loss of
  entitlement  to  the  earnings  disregard  under  subparagraph  (iii) of
  paragraph (a) of subdivision eight of section one  hundred  thirty-one-a
  of  this  chapter  shall,  while such family includes a dependent child,
  remain  eligible  for  medical  assistance  for  six   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  eight  of  paragraph  (a)  of
  subdivision one of this section.
    (ii)  Each family which received medical assistance for the entire six
  month period under subparagraph (i) of this paragraph and complied  with
  the  department's  reporting  requirements  for  such  initial six month
  period shall be offered the option of extending such eligibility for  an
  additional  six  calendar  months  if  and  for  so  long as such family
  includes  a  dependent  child  and  meets  the  income  requirements  in
  subparagraph (ii) of paragraph (b) of this subdivision.

    (b)  (i)  Upon  giving  notice  of  termination  of medical assistance
  provided pursuant to subparagraph eight or  nine  of  paragraph  (a)  of
  subdivision  one  of this section, the department shall notify each such
  family of its rights to extended benefits under paragraph  (a)  of  this
  subdivision  and  describe any reporting requirements and the conditions
  under which such extension may be terminated. The department shall  also
  provide  subsequent notices of the option to extend coverage pursuant to
  paragraph (a) of this subdivision in the third and sixth months  of  the
  initial  six month extended coverage period and notices of the reporting
  requirements under such paragraph in each of the third and sixth  months
  of the initial six month extended coverage period and in the third month
  of the additional extended coverage period.
    (ii)  The  department  shall  promulgate  regulations implementing the
  requirements of this paragraph and paragraph  (a)  of  this  subdivision
  relating  to  the  conditions  under which initial extended coverage and
  additional extended coverage hereunder may be terminated, the  scope  of
  coverage,  the  reporting  requirements  and  the conditions under which
  coverage may be extended pending a redetermination of eligibility.  Such
  regulations  shall,  at  a minimum, provide for: (A) termination of such
  coverage at the close of the first month in which the family  ceases  to
  include  a dependent child and at the close of the first or fourth month
  of the additional extended  coverage  period  if  the  family  fails  to
  report, as required by the regulations, or the caretaker relative had no
  earnings in one or more of the previous three months unless such lack of
  earnings  was  for  good  cause,  or  the family's average gross monthly
  earnings, less necessary work related child care costs of the  caretaker
  relative, during the preceding three months was greater than one hundred
  eighty-five   percent  of  the  federal  income  official  poverty  line
  applicable to the family's size; (B) notice of termination prior to  the
  effective  date  of  any terminations; (C) quarterly reporting of income
  and child care costs during the initial and additional extended coverage
  periods; (D) coverage under employee health plans and health maintenance
  organizations; and (E) disqualification of persons for extended coverage
  benefits under this paragraph for fraud.
    (c) Notwithstanding any inconsistent provision  of  law,  each  family
  which was eligible for medical assistance pursuant to subparagraph eight
  of paragraph (a) 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  child or 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  eight  of
  paragraph  (a) of subdivision one of this section for an additional four
  calendar  months  beginning  with  the  month  ineligibility  for   such
  assistance begins.
    (d)  Notwithstanding  any other provision of law, in the absence of an
  agreement  as  set  forth  in  subparagraph  two  of  paragraph  (a)  of
  subdivision  one  of this section, an aged, blind or disabled person who
  is eligible for federal supplemental  security  income  payments  and/or
  additional state payments shall be eligible for medical assistance under
  this  title pursuant to standards which were in effect on January first,
  nineteen hundred seventy-two. For the purposes of this  paragraph,  such
  individual  shall  be  deemed  eligible if, in addition to meeting other
  eligibility requirements of this title unrelated to income,  his  income
  as  determined  by  excluding federal supplemental security payments and
  additional state payments  to  such  person  and  his  expenditures  for
  medical  care  and  services  deductible  for  income  tax  purposes, as

  determined by the department is not in excess of the income standard for
  determining eligibility for medical assistance under the  provisions  of
  this  title  which  were  in  effect  on January first, nineteen hundred
  seventy-two.
    (e) Notwithstanding any other provision of law, any person who, as the
  spouse  of a recipient of old age assistance, assistance to the blind or
  aid to the disabled, was eligible for medical assistance  for  December,
  nineteen  hundred seventy-three, pursuant to clause (ii) of subparagraph
  four of paragraph (a) of subdivision one of this section, shall continue
  to be eligible therefor so long as (1) his spouse continues to meet  the
  standards of eligibility for old age assistance, assistance to the blind
  or  aid  to  the  disabled,  pursuant  to  this  chapter,  in effect for
  December, nineteen hundred seventy-three, and (2) such person  continues
  to  be  the  spouse  of  such  recipient and continues to meet the other
  criteria set forth in such subparagraph four.
    (f) Notwithstanding any other provision of law, any  person  who,  for
  all  or  any  part  of  December, nineteen hundred seventy-three, was an
  inpatient in an institution or facility wherein medical  assistance  may
  be  provided in accordance with applicable federal or state requirements
  and, with respect to standards of eligibility, pursuant to this chapter,
  in effect for such month, (1)  would,  except  for  his  being  such  an
  inpatient,  have been eligible to receive old age assistance, aid to the
  blind or aid to the disabled, or (2) was, on the basis of his  need  for
  care in such institution or facility, considered to be eligible for such
  aid or assistance for the purpose of determining eligibility for medical
  assistance   under  this  title,  shall  continue  to  be  eligible  for
  assistance under this title so long as he continues to be  an  inpatient
  in  need  of  care  in such institution or facility, and he continues to
  meet the criteria set  forth  in  subparagraphs  one  and  two  of  this
  paragraph.
    (g)  Notwithstanding any other provision of law, any blind or disabled
  person who was eligible for medical assistance  for  December,  nineteen
  hundred  seventy-three  pursuant to clause (iii) of subparagraph four of
  paragraph (a) of subdivision one of this section, shall continue  to  be
  eligible  therefor,  so  long  as  he continues to meet the criteria for
  blindness or disability pursuant to this  chapter  in  effect  for  such
  month  for  the purpose of determining eligibility for assistance to the
  blind or aid to the disabled.
    (h) (1) Any inconsistent  provision  of  this  chapter  or  other  law
  notwithstanding,  an  applicant  for  or a recipient of assistance under
  this title shall be required, as a condition  of  initial  or  continued
  eligibility  for  such  assistance,  to assign to the appropriate social
  services official or  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.
    (2) Such applicant or recipient shall also be required, as a condition
  of  initial  or  continued eligibility for such assistance, to cooperate
  with the appropriate social  services  official  or  the  department  in
  establishing  paternity  or  in  establishing, modifying, or enforcing a
  support order with respect to a child of  the  applicant  or  recipient;
  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  the
  cooperation  as  set  forth  herein  of  an  applicant or recipient with
  respect to whom such official has determined that such actions would  be
  detrimental  to the best interest of the child, applicant, or recipient,
  or with respect to  pregnant  women  during  pregnancy  and  during  the
  sixty-day  period  beginning on the last day of pregnancy, in accordance
  with  procedures  and  criteria  established  by  regulations   of   the
  department consistent with federal law.
    (i)  Any  inconsistent  provision  of  law  notwithstanding and to the
  extent permissible under federal law any applicant for or  recipient  of
  medical  assistance  pursuant  to  the provisions of subparagraph three,
  four or five of paragraph (a) of subdivision one of this section, except
  those persons receiving benefits pursuant to Title XVI  of  the  federal
  social  security  act,  who  is  or  becomes employed and whose employer
  provides group health  insurance  benefits,  including  benefits  for  a
  spouse  and  dependent  children  of  such applicant or recipient, shall
  apply for and utilize such benefits as a condition  of  eligibility  for
  medical  assistance. Such applicant or recipient shall also utilize such
  benefits provided by former employers  as  long  as  such  benefits  are
  available.  The  provisions  of  this  paragraph  shall  apply  to  such
  applicants upon their initial certification for medical  assistance  and
  to  such  recipients  upon  their  recertifications  for such assistance
  following the effective date of this  paragraph.  The  department  shall
  promulgate  regulations  to  determine  the  eligibility requirements of
  those applicants and recipients who have more than one employer offering
  group health insurance benefits.
    * (j) In accordance  with  applicable  federal  requirements,  to  the
  extent that federal financial participation is available, and subject to
  the  approval  of  the  director  of  the  budget: (1) the department is
  authorized to select entities  offering  comprehensive  health  services
  plans  which are certified under article forty-four of the public health
  law, or licensed pursuant to article forty-three of the insurance law or
  otherwise authorized by law, for the purpose of  continuing  to  provide
  services  to  enrollees of such entities who have lost their eligibility
  for medical assistance;
    (2)  individuals  for  whom  federal  financial  participation   would
  otherwise  be available pursuant to title XIX of the social security act
  but who have lost their eligibility for medical  assistance  before  the
  end  of  a  six  month  enrollment  period  beginning on the date of the
  individual's enrollment in  the  entities  designated  pursuant  to  the
  provisions  of  subparagraph  one  of  this  paragraph, shall have their
  eligibility for medical assistance continued until the end  of  the  six
  month  enrollment  period, but only with respect to services provided to
  the individual as an enrollee of the entity.
    (3) The commissioner may apply for appropriate waivers  under  section
  eleven  hundred  fifteen  of the social security act necessary to obtain
  federal financial participation for  those  enrollees  of  non-federally
  qualified entities offering comprehensive health services plans.
    * NB Expires March 31, 2012
    * (k)  Notwithstanding  any inconsistent provision of law, persons who
  were eligible for medical assistance pursuant  to  subparagraph  one  or
  nine  of  paragraph  (a)  of subdivision one of this section and who are
  participants in the  entities  offering  comprehensive  health  services
  plans  designated  pursuant to paragraph (j) of this subdivision and who
  have lost their eligibility for medical assistance before the end  of  a
  six-month period beginning on the date of the individual's enrollment in

  such  entities,  shall  have  their  eligibility  for medical assistance
  continued until the end of the six-month  enrollment  period,  but  only
  with  respect  to  services provided to the individual as an enrollee in
  the entity offering a comprehensive health services plan.
    * NB Expires March 31, 2012
    (l)  Notwithstanding any inconsistent provision of law, any 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.
    (m)  * (1) Pregnant women and infants younger than one year of age who
  are not otherwise eligible for medical  assistance  and  whose  families
  have incomes equal to or less than one hundred percent of the comparable
  federal income official poverty line (as defined and annually revised by
  the  federal  office  of management and budget) for families of the same
  size.
    * NB Effective until April 1, 2010
    * (1) Pregnant women and infants younger than one year of age who  are
  not  otherwise  eligible  for medical assistance and whose families have
  net incomes equal to or less than one hundred  percent  of  the  federal
  poverty  line  (as  defined  and  annually  revised by the United States
  department of health and human services) for families of the  same  size
  shall  be  eligible  for  medical assistance as provided in subparagraph
  three of this paragraph. Subject to the approval of the federal  Centers
  for  Medicare  and  Medicaid Services, financial eligibility pursuant to
  this paragraph may be determined using an equivalent  methodology  based
  on the family's gross income.
    * NB Effective April 1, 2010
    (2)  For  purposes  of  determining eligibility for medical assistance
  under this paragraph, family income is determined by  use  of  the  same
  methodology  used  to  determine  eligibility  for  the aid to dependent
  children program as it existed on the sixteenth day  of  July,  nineteen
  hundred   ninety-six   and  if  authorized  by  federal  law,  rules  or
  regulations resources available to such family shall not  be  considered
  nor  required  to  be  applied  to the cost of medical care, services or
  supplies available under this paragraph.
    (3) (i) A pregnant woman eligible  for  medical  assistance  care  and
  services  under this paragraph on any day of her pregnancy will continue
  to be eligible for such care and services through the end of  the  month
  in  which  the  sixtieth  day following the end of the pregnancy occurs,
  without regard for 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 care and services.
    (ii) Infants under one year of age will continue to  be  eligible  for
  in-patient  care  and  services  through  the end of any in-patient stay
  commenced prior to  their  attaining  the  age  of  one  year  provided,
  however,  that they were eligible under this paragraph upon commencement
  of such stay and, but  for  attaining  such  age,  would  have  remained
  eligible therefor.
    (n) * (1) Infants younger than one year who are not otherwise eligible
  for  medical assistance and whose families have incomes equal to or less
  than two hundred percent of the federal income official poverty line (as
  defined and annually revised by the United States department  of  health
  and  human  services) for a family of the same size as the families that
  include the infants shall be eligible for medical assistance as provided

  in subparagraph three of this paragraph. For purposes of this paragraph,
  family income shall be determined by use of the same methodology used to
  determine eligibility for the aid to dependent children  program  as  it
  existed on the sixteenth day of July, nineteen hundred ninety-six.
    * NB Effective until April 1, 2010
    * (1) Infants younger than one year who are not otherwise eligible for
  medical  assistance and whose families have: (i) subject to the approval
  of the federal Centers for Medicare and Medicaid Services, gross incomes
  not in excess of two hundred thirty percent of the federal poverty  line
  (as  defined  and  annually  revised  by the United States department of
  health and human services) for a family of the same size as the families
  that include the children or (ii) in the absence of such  approval,  net
  incomes equal to or less than two hundred percent of the federal poverty
  line (as defined and annually revised by the United States department of
  health and human services) for a family of the same size as the families
  that  include  the  infants, shall be eligible for medical assistance as
  provided in subparagraph three of this paragraph. For purposes  of  this
  paragraph,  family  income  shall  be  determined  by  use  of  the same
  methodology used to determine  eligibility  for  the  aid  to  dependent
  children  program  as  it existed on the sixteenth day of July, nineteen
  hundred ninety-six.
    * NB Effective April 1, 2010
    (2) For purposes  of  this  paragraph,  resources  available  to  such
  families  shall  not be considered nor required to be applied toward the
  payment or part payment of the cost of medical assistance care, services
  and supplies available under this paragraph.
    (3) An eligible infant who is receiving medically necessary in-patient
  services for which medical assistance is provided on the date the infant
  attains one year, 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.
    (o)  * (1)  Pregnant  women who are not otherwise eligible for medical
  assistance are eligible for services provided under  the  prenatal  care
  assistance   program  established  pursuant  to  title  two  of  article
  twenty-five of the public health law if the income of  the  family  that
  includes  the  pregnant woman does not exceed two hundred percent of the
  comparable federal income official poverty line (as defined and annually
  revised by the United States department of health  and  human  services)
  for families of the same size.
    * NB Effective until April 1, 2010
    * (1)  Pregnant  women  who  are  not  otherwise  eligible for medical
  assistance and whose families have: (i) subject to the approval  of  the
  federal Centers for Medicare and Medicaid Services, gross incomes not in
  excess  of  two  hundred  thirty percent of the federal poverty line (as
  defined and annually revised by the United States department  of  health
  and  human  services) for a family of the same size as the families that
  include the children or (ii)  in  the  absence  of  such  approval,  net
  incomes equal to or less than two hundred percent of the federal poverty
  line (as defined and annually revised by the United States department of
  health  and  human  services)  for  families  of the same size, shall be
  eligible  for  coverage  of  prenatal  care  services  as  provided   in
  subparagraph three of this paragraph.
    * NB Effective April 1, 2010
    (2)  For  purposes  of  determining  eligibility under this paragraph,
  family income is determined by use  of  the  same  methodology  used  to
  determine  eligibility  for  the aid to dependent children program as it
  existed on the sixteenth day of July, nineteen  hundred  ninety-six  and

  resources  available to such family shall not be considered nor required
  to be applied  to  the  cost  of  medical  care,  services  or  supplies
  available under this paragraph.
    (3) A pregnant woman eligible for services under this paragraph on any
  day  of  her  pregnancy  will  continue to be eligible for such care and
  services through the  end  of  the  month  in  which  the  sixtieth  day
  following the end of the pregnancy occurs, without regard for 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 care and services.
    (4) For purposes of this title, prenatal care services include:
    (i) prenatal risk assessment;
    (ii) prenatal care visits;
    (iii) laboratory services;
    (iv)  health  education  for both parents regarding prenatal nutrition
  and other aspects of prenatal care, alcohol and tobacco  use,  substance
  abuse, use of medication, labor and delivery, family planning to prevent
  future   unintended   pregnancies,   breast  feeding,  infant  care  and
  parenting;
    (v) referral for pediatric care;
    (vi) referral for nutrition services including  screening,  education,
  counseling, follow-up and provision of services under the women, infants
  and   children's  program  and  the  supplemental  nutrition  assistance
  program;
    (vii) mental health and related social  services  including  screening
  and counseling;
    (viii) transportation services for prenatal care services;
    (ix) labor and delivery services;
    (x) post-partum services including family planning services;
    (xi) inpatient care, specialty physician and clinic services which are
  necessary to assure a healthy delivery and recovery;
    (xii) dental services;
    (xiii) emergency room services;
    (xiv) home care; and
    (xv) pharmaceuticals.
    * (p)  (1)  Children who are at least one year of age but younger than
  six years of age who are not otherwise eligible for  medical  assistance
  and  whose  families  have  incomes  equal  to  or less than one hundred
  thirty-three percent of the federal income  official  poverty  line  (as
  defined  and  annually  revised  by the federal office of management and
  budget) for a family of the same size as the families that  include  the
  children  shall  be  eligible  for  medical  assistance and shall remain
  eligible therefor as provided in subparagraph three of this paragraph.
    (2) For purposes of determining  eligibility  for  medical  assistance
  under  this  paragraph,  family income shall be determined by use of the
  same methodology used to determine eligibility for the aid to  dependent
  children  program  as  it existed on the sixteenth day of July, nineteen
  hundred ninety-six provided, however, that costs incurred for medical or
  remedial care shall not be considered and resources  available  to  such
  families  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.
    (3)  An eligible child who is receiving medically necessary in-patient
  services for which medical assistance is provided on the date the  child
  attains  six  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.

    * NB Effective until April 1, 2010
    * (p)  (1)  Children who are at least one year of age but younger than
  nineteen years of  age  who  are  not  otherwise  eligible  for  medical
  assistance  and  whose families have: (i) subject to the approval of the
  federal Centers for Medicare and Medicaid services, gross incomes not in
  excess of one hundred sixty  percent  of  the  federal  income  official
  poverty  line  (as defined and annually revised by the federal office of
  management and budget) for a family of the same  size  as  the  families
  that  include  the children or (ii) in the absence of such approval, net
  incomes equal to or less than one hundred thirty-three  percent  of  the
  federal income official poverty line (as defined and annually revised by
  the  federal  office  of management and budget) for a family of the same
  size as the families that include the children  shall  be  eligible  for
  medical  assistance  and  shall  remain eligible therefor as provided in
  subparagraph three of this paragraph.
    (2) For purposes of determining  eligibility  for  medical  assistance
  under  this  paragraph,  family income shall be determined by use of the
  same methodology used to determine eligibility for the aid to  dependent
  children  program  as  it existed on the sixteenth day of July, nineteen
  hundred ninety-six provided, however, that costs incurred for medical or
  remedial care shall not be considered and resources  available  to  such
  families  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.
    (3)  An eligible child 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.
    * NB Effective April 1, 2010
    ** (q)  * (1) Children younger than nineteen years of age, who are not
  otherwise eligible  for  medical  assistance  and  whose  families  have
  incomes  equal to or less than one hundred percent of the federal income
  official poverty line (as defined  and  updated  by  the  United  States
  department  of  health and human services) for a family of the same size
  as families that include such children shall  be  eligible  for  medical
  assistance   and   shall   remain  eligible  therefor,  as  provided  in
  subparagraph three of this paragraph.
    * NB Effective until July 1, 2011
    * (1)  Children  born  after  September  thirtieth,  nineteen  hundred
  eighty-three who are at least six years of age but younger than nineteen
  years  of age, who are not otherwise eligible for medical assistance and
  whose families have incomes equal to or less than one hundred percent of
  the federal income  official  poverty  line  (as  defined  and  annually
  revised  by the federal office of management and budget) for a family of
  the same size as families that include such children shall  be  eligible
  for  medical  assistance and shall remain eligible therefor, as provided
  in subparagraph three of this paragraph.
    * NB Effective July 1, 2011
    (2) For purposes of this paragraph, family income is determined by use
  of the same methodology used to determine eligibility  for  the  aid  to
  dependent  children  program as it existed on the sixteenth day of July,
  nineteen hundred ninety-six provided, however, that costs  incurred  for
  medical  or remedial care shall not be taken into account in determining
  eligibility.
    (3) Children who  are  eligible  for  medical  assistance  under  this
  paragraph  shall continue to be eligible for inpatient care and services

  through the end of any inpatient stay commenced prior to their attaining
  the age of nineteen years, provided, however, that  they  were  eligible
  under  this  paragraph  upon  commencement  of  such  stay  and, but for
  attaining such age, would have remained eligible therefor.
    ** NB Repealed April 1, 2010
    (r) To the extent permitted under federal law, if, for so long as, and
  to   the  extent  that  federal  financial  participation  is  available
  therefor, tuberculosis-related services, including  prescription  drugs,
  physician  services,  laboratory  and  x-ray  services, clinic services,
  case-management services, and such other care, services and supplies  as
  specified by the department in regulation, shall be given to persons not
  otherwise  described  in this section who are infected with tuberculosis
  and whose income and resources do not exceed the amounts which a  person
  may have and be eligible for medical assistance under this title.
    * (s) Notwithstanding any inconsistent provision of law, 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:
    (1) the last day of the month which is  twelve  months  following  the
  determination or redetermination of eligibility for such assistance; or
    (2)  the  last  day of the month in which the child reaches the age of
  nineteen.
    * NB Expires July 1, 2011
    * (t) (1)  Notwithstanding  the  provisions  of  sections  twenty-five
  hundred  ten and twenty-five hundred eleven of the public health law and
  paragraph (p) of this subdivision and subject to  subparagraph  four  of
  this  paragraph,  children who are at least six years of age but younger
  than nineteen years of age, who are not otherwise eligible  for  medical
  assistance  under  paragraph  (p) of this subdivision and whose families
  have a net household income greater than one hundred  percent  and  less
  than  or equal to one hundred thirty-three percent of the federal income
  official poverty line (as defined  and  updated  by  the  United  States
  Department  of  Health and Human Services) for a family of the same size
  as the families that include the children shall be eligible for  medical
  assistance   and   shall   remain   eligible  therefor  as  provided  in
  subparagraph three hereof.
    (2) For the purposes of determining eligibility for medical assistance
  under this paragraph, family income shall be  determined  in  accordance
  with subparagraph two of paragraph (p) of this subdivision.
    (3)  For  the  purposes  of  this  paragraph, an eligible child 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 such
  medical assistance under this section, shall continue to remain eligible
  until the end of the  stay  for  which  in-patient  services  are  being
  furnished.
    (5)  The  commissioner  will  use  best  efforts to obtain a waiver of
  provisions of title XXI of the federal  social  security  act  from  the
  secretary  of  the federal department of health and human services under
  which children who become eligible for medical  assistance  pursuant  to
  this paragraph who are enrolled in the state children's health insurance
  program  under  sections twenty-five hundred ten and twenty-five hundred
  eleven of the public health law on the day before implementation of this
  paragraph under clauses  (i)  or  (ii)  of  subparagraph  four  of  this
  paragraph,  are  allowed  the  option  of  permanently  retaining  their
  enrollment in the state children's health insurance program or enrolling
  in the medical assistance program pursuant to this  paragraph,  and  the

  commissioner is authorized to take whatever other action, if any, may be
  necessary to effect this subparagraph.
    (6)  Notwithstanding  any  other provision of law to the contrary, the
  provisions of subparagraphs one through three of  this  paragraph  shall
  not be implemented prior to January first, nineteen hundred ninety-nine.
    * NB Expired April 1, 2005
    (u)  (1)  Notwithstanding  the  provisions  of  paragraph  (p) of this
  subdivision, children who are less than one year of age and have  a  net
  household  income  less  than  or  equal  to  two hundred percent of the
  federal income official poverty line (as  defined  and  updated  by  the
  United  States  department of health and human services) for a family of
  the same size as the families that include children  shall  be  eligible
  for  presumptive  eligibility  in  accordance  with  subdivision four of
  section three hundred sixty-four-i of this title.
    (2)  Notwithstanding  the  provisions  of  paragraph   (p)   of   this
  subdivision, children who are at least one year of age and less than six
  years  and have a net household income less than or equal to one hundred
  thirty-three percent of the federal income  official  poverty  line  (as
  defined  and updated by the United States department of health and human
  services) for a family of the same size as the families that include the
  children shall be  eligible  in  accordance  with  subdivision  four  of
  section three hundred sixty-four-i of this title.
    (3)   Notwithstanding   the   provisions  of  paragraph  (q)  of  this
  subdivision, children who are at least six years of age and younger than
  nineteen years and have a net household income less than or equal to one
  hundred percent of the federal official poverty  line  (as  defined  and
  updated  by  the  United States department of health and human services)
  for a family of the same size as the families that include the  children
  shall  be  eligible in accordance with subdivision four of section three
  hundred sixty-four-i of this title.
    (4) For the purposes of determining eligibility for medical assistance
  under this paragraph, family income shall be  determined  in  accordance
  with subparagraph two of paragraph (p) of this subdivision.
    (v)(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  I-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.
    (v-1)(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.
    (w) 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.

    (x)  Notwithstanding  any  other  provision  of  law,  a person who is
  eligible for medical assistance  pursuant  to  subparagraph  one,  four,
  five,  seven,  eight, nine or ten of paragraph (a) of subdivision one of
  this section, but who loses eligibility  for  such  assistance  for  any
  reason  other  than  loss  of state residence 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,  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; and provided further that a person who is otherwise described
  in this paragraph but who is eligible for federal supplemental  security
  income  benefits  and/or additional state payments, or whose net income,
  without deducting the amount of any incurred medical  expenses,  exceeds
  the  net  income exemptions set forth in subparagraph seven of paragraph
  (a) of subdivision two of this section, or who is  in  receipt  of  long
  term  care  services,  as defined in paragraph (b) of subdivision one of
  section three hundred sixty-seven-f of this title, or who  is  receiving
  care,  services and supplies under a waiver pursuant to section nineteen
  hundred fifteen of the federal social security act, is not eligible  for
  the twelve month continuous coverage described in this paragraph.
    5.  (a)  In  determining  the initial or continuing eligibility of any
  person for assistance under this title, there shall be included  in  the
  amount   of   resources   considered   available   to  such  person  the
  uncompensated value of any resource transferred prior  to  the  date  of
  application  for medical assistance as specified in paragraphs (b), (c),
  (d) and (e) of this subdivision, and such person shall be ineligible for
  such assistance  for  such  period  or  periods  as  specified  in  this
  subdivision.
    (b)  For  transfers  made  on  or  after April tenth, nineteen hundred
  eighty-two and prior to October first, nineteen hundred eighty-nine:
    (1) a nonexempt resource shall mean any resource which if retained  by
  such  person would not be exempt from consideration under the provisions
  of subdivision two of this section;
    (2) any transfer of  a  nonexempt  resource  made  within  twenty-four
  months  prior  to  the  date  of  a  person's  application  for  medical
  assistance shall be presumed to  have  been  made  for  the  purpose  of
  qualifying  for  such  assistance;  however,  if  such  person furnishes
  evidence to establish that the transfer was exclusively for  some  other
  purpose,  the  uncompensated  value shall not be considered available to
  such person in determining his or her initial or  continued  eligibility
  for medical assistance;
    (3)  the  uncompensated  value  of any such resource shall be the fair
  market value of such resource at the time of transfer, minus the  amount
  of the compensation received by the person in exchange for the resource;
    (4)  any person determined to have excess resources of twelve thousand
  dollars or less because of  the  application  of  this  paragraph  shall
  remain  ineligible  for  assistance  under  this  title  for a period of
  twenty-four months from the date of the transfer, or until  such  person
  can  demonstrate  that he or she has incurred medical expenses after the
  date of transfer in the amount of such excess above otherwise  allowable
  resources, whichever period is shorter;
    (5) any person determined to have excess resources of more than twelve
  thousand  dollars  because  of  the  application of this paragraph shall
  remain ineligible for assistance under this title  for  a  period  which
  exceeds  twenty-four  months, which period shall be determined by adding
  an additional month of ineligibility for each two  thousand  dollars  in

  excess  of twelve thousand dollars, or until such person can demonstrate
  that he or she has incurred medical expenses after the date of  transfer
  in  the  amount  of  such  excess  above  otherwise allowable resources,
  whichever period is shorter.
    (c)  For  transfers  made  on or after October first, nineteen hundred
  eighty-nine:
    (1)  (i)  "institutionalized  person"  means  any  person  who  is  an
  in-patient  in  a nursing facility, or who is an in-patient in a medical
  facility and is  receiving  a  level  of  care  provided  in  a  nursing
  facility,  or  who is receiving care, services or supplies pursuant to a
  waiver pursuant to subsection (c) of section nineteen hundred fifteen of
  the federal social security act.
    (ii) "resources" includes any resources which would not be  considered
  exempt  from  consideration  under  the provisions of subdivision two of
  this  section,  without  regard  to  the  exemption  provided   for   in
  subparagraph one of paragraph (a) of such subdivision.
    (iii)  "nursing  facility"  means a nursing home as defined by section
  twenty-eight hundred one of the public health law.
    (iv) "nursing facility services" means nursing care and health related
  services provided in a nursing facility, a level of care provided  in  a
  hospital  which is equivalent to the care which is provided in a nursing
  facility and care, services or supplies provided pursuant  to  a  waiver
  pursuant  to  subsection  (c) of section nineteen hundred fifteen of the
  federal social security act.
    (2) the uncompensated value of a resource shall  be  the  fair  market
  value  of such resource at the time of transfer, minus the amount of the
  compensation received in exchange for the resource.
    (3) any transfer of a resource by a person or such person's spouse for
  less than fair market value made  within  or  after  the  thirty  months
  immediately  preceding  the date the person becomes an institutionalized
  person or the date  of  application  for  medical  assistance  while  an
  institutionalized  person,  if later, shall render the person ineligible
  for nursing facility services for a  period  specified  in  subparagraph
  four  of  this paragraph; however, an institutionalized person shall not
  be ineligible for nursing facility services solely by reason of any such
  transfer to the extent that:
    (i) the resource transferred was a home and  title  to  the  home  was
  transferred  to:  (A)  the spouse of such person; or (B) a child of such
  person who is under the age of twenty-one years or  certified  blind  or
  certified  permanently  and  totally disabled, as defined by section two
  hundred eight of this title; or (C) a sibling of such person who has  an
  equity  interest  in such home and who resided in such home for a period
  of at least one year immediately before the date the  person  became  an
  institutionalized  person;  or  (D) a son or daughter of such person who
  was residing in such home for a period of at least two years immediately
  before the date such person became an institutionalized person, and  who
  provided  care  to  such person which permitted such person to reside at
  home rather than in an institution or facility; or
    (ii) the resource was transferred to or for the sole benefit  of  such
  person's spouse, or from such person's spouse to or for the sole benefit
  of  such  person,  or  to  his  or  her  child who is certified blind or
  certified permanently and totally disabled; or
    (iii) a satisfactory showing is made that:  (A)  the  person  or  such
  person's  spouse  intended  to  dispose  of  the resource either at fair
  market value, or for other valuable consideration, or (B)  the  resource
  was  transferred  exclusively  for  a  purpose other than to qualify for
  medical assistance; or

    (iv) denial of eligibility would work an undue hardship, as defined by
  the commissioner which definition shall include  the  inability  of  the
  institutionalized  person  or  such  person's  spouse  to  retrieve  the
  resource or to obtain fair market value therefor despite his or her best
  efforts.
    (4)  Any  transfer  made  by  a  person  or  the person's spouse under
  subparagraph three of this  paragraph  shall  cause  the  person  to  be
  ineligible  for  nursing  facility  services, for services at a level of
  care equivalent to that of nursing facility services for the  lesser  of
  (i)  a  period  of  thirty  months  from the date of transfer, or (ii) a
  period equal to the  total  uncompensated  value  of  the  resources  so
  transferred, divided by the average cost of nursing facility services to
  a  private patient for a given period of time at the time of application
  as determined by the commissioner. For purposes of this subparagraph the
  average cost of nursing facility services to a  private  patient  for  a
  given  period of time at the time of application shall be presumed to be
  one hundred twenty percent of the average  medical  assistance  rate  of
  payment  as  of  the  first  day  of  January  of  each year for nursing
  facilities within the region as established pursuant to paragraph (b) of
  subdivision sixteen of  section  twenty-eight  hundred  seven-c  of  the
  public health law wherein the applicant resides.
    (d)   For   transfers   made  after  August  tenth,  nineteen  hundred
  ninety-three:
    (1) (i) "assets" means all income and resources of an  individual  and
  of  the  individual's spouse, including income or resources to which the
  individual or the individual's spouse is  entitled  but  which  are  not
  received  because  of  action  by:  the  individual  or the individual's
  spouse; a person with legal authority to act in place of or on behalf of
  the individual or the  individual's  spouse;  a  person  acting  at  the
  direction  or  upon  the  request  of the individual or the individual's
  spouse; or by a court or administrative body with legal authority to act
  in place of or on behalf of the individual or the individual's spouse or
  at  the  direction  or  upon  the  request  of  the  individual  or  the
  individual's spouse.
    (ii)  "blind"  has  the  same  meaning  given  to such term in section
  1614(a)(2) of the federal social social security act.
    (iii) "disabled" has the same meaning given to such  term  in  section
  1614(a)(3) of the federal social security act.
    (iv)  "income" has the same meaning given to such term in section 1612
  of the federal social security act.
    (v) "resources" has the same meaning given to  such  term  in  section
  1613  of the federal social security act, without regard, in the case of
  an institutionalized  individual,  to  the  exclusion  provided  for  in
  subsection (a)(1) of such section.
    (vi)  "look-back period" means the thirty-six month period, or, in the
  case of payments from a trust or portions of a trust which  are  treated
  as   assets  disposed  of  by  the  individual  pursuant  to  department
  regulations, the sixty-month period, immediately preceding the date that
  an  institutionalized  individual  is  both  institutionalized  and  has
  applied for medical assistance.
    (vii)  "institutionalized  individual"  means any individual who is an
  in-patient  in  a  nursing  facility,  including  an  intermediate  care
  facility for the mentally retarded, or who is an in-patient in a medical
  facility  and  is  receiving  a  level  of  care  provided  in a nursing
  facility, or who is receiving care, services or supplies pursuant  to  a
  waiver granted pursuant to subsection (c) of section 1915 of the federal
  social security act.

    (viii)  "intermediate care facility for the mentally retarded" means a
  facility certified under article sixteen of the mental hygiene  law  and
  which   has   a  valid  agreement  with  the  department  for  providing
  intermediate care facility services and receiving payment therefor under
  title XIX of the federal social security act.
    (ix)  "nursing  facility"  means  a nursing home as defined by section
  twenty-eight hundred one of the public health law  and  an  intermediate
  care facility for the mentally retarded.
    (x)  "nursing facility services" means nursing care and health related
  services provided in a nursing facility; a level of care provided  in  a
  hospital  which is equivalent to the care which is provided in a nursing
  facility; and care, services or supplies provided pursuant to  a  waiver
  granted pursuant to subsection (c) of section 1915 of the federal social
  security act.
    (2)  The  uncompensated  value of an asset is the fair market value of
  such asset at the time of transfer, minus the amount of the compensation
  received in exchange for the asset.
    (3)  In  determining  the  medical  assistance   eligibility   of   an
  institutionalized individual, any transfer of an asset by the individual
  or  the  individual's spouse for less than fair market value made within
  or after the look-back period shall render the individual ineligible for
  nursing  facility  services  for  the  period  of  time   specified   in
  subparagraph  four  of this paragraph. Notwithstanding the provisions of
  this subparagraph, an individual shall not be  ineligible  for  services
  solely by reason of any such transfer to the extent that:
    (i)  in  the  case  of  an  institutionalized  individual,  the  asset
  transferred was a home and title to the home as transferred to: (A)  the
  spouse  of the individual; or (B) a child of the individual who is under
  the age of twenty-one years or blind or disabled; or (C)  a  sibling  of
  the  individual  who has an equity interest in such home and who resided
  in such home for a period of at least one year  immediately  before  the
  date  the  individual  became  an institutionalized individual; or (D) a
  child of the individual who was residing in such home for a period of at
  least two years immediately before the date  the  individual  became  an
  institutionalized  individual,  and  who provided care to the individual
  which permitted the individual to reside  at  home  rather  than  in  an
  institution or facility; or
    (ii)  the  assets: (A) were transferred to the individual's spouse, or
  to another for the sole benefit of the individual's spouse; or (B)  were
  transferred from the individual's spouse to another for the sole benefit
  of  the individual's spouse; or (C) were transferred to the individual's
  child who is blind or disabled, or to a trust established solely for the
  benefit of such child; or (D) were transferred to  a  trust  established
  solely  for  the  benefit of an individual under sixty-five years of age
  who is disabled; or
    (iii) a satisfactory showing is made that: (A) the individual  or  the
  individual's  spouse  intended  to  dispose of the assets either at fair
  market value, or for other valuable consideration;  or  (B)  the  assets
  were  transferred  exclusively  for  a purpose other than to qualify for
  medical assistance; or (C) all assets transferred  for  less  than  fair
  market value have been returned to the individual; or
    (iv)   denial  of  eligibility  would  cause  an  undue  hardship,  as
  determined pursuant to the regulations of the department  in  accordance
  with  criteria established by the secretary of the federal department of
  health and human services.
    (4) Any transfer made by an  individual  or  the  individual's  spouse
  under  subparagraph three of this paragraph shall cause the person to be
  ineligible for services for a period  equal  to  the  total,  cumulative

  uncompensated  value  of  all  assets  transferred  during  or after the
  look-back period, divided  by  the  average  monthly  costs  of  nursing
  facility  services  provided  to a private patient for a given period of
  time  at  the  time  of  application,  as  determined  pursuant  to  the
  regulations of the department. The period of ineligibility  shall  begin
  with  the first day of the first month during or after which assets have
  been transferred for less than fair market value,  and  which  does  not
  occur  in  any  other periods of ineligibility under this paragraph. For
  purposes of this subparagraph, the  average  monthly  costs  of  nursing
  facility services to a private patient for a given period of time at the
  time  of  application shall be presumed to be one hundred twenty percent
  of the average medical assistance rate of payment as of the first day of
  January of each year for nursing facilities within  the  region  wherein
  the  applicant  resides,  as  established  pursuant  to paragraph (b) of
  subdivision sixteen of  section  twenty-eight  hundred  seven-c  of  the
  public health law.
    (5)  In  the  case  of  an  asset held by an individual in common with
  another person or persons in a joint  tenancy,  tenancy  in  common,  or
  similar  arrangement,  the  asset, or the affected portion of the asset,
  shall be considered to be transferred by such individual when any action
  is taken, either by such individual or by any other person, that reduces
  or eliminates such individual's ownership or control of such asset.
    (6) In  the  case  of  a  trust  established  by  the  individual,  as
  determined  pursuant  to the regulations of the department, any payment,
  other than a payment to or for the benefit of  the  individual,  from  a
  revocable  trust  is  considered  to  be  a  transfer  of  assets by the
  individual and any payment, other than to or  for  the  benefit  of  the
  individual,  from  the  portion of an irrevocable trust which, under any
  circumstance, could be made available to the individual is considered to
  be a transfer of assets by the individual and, further, the value of any
  portion of an irrevocable trust from which no payment could be  made  to
  the individual under any circumstances is considered to be a transfer of
  assets  by the individual for purposes of this section as of the date of
  establishment of the trust, or, if later, the date on which  payment  to
  the individual is foreclosed.
    (e) For transfers made on or after February eighth, two thousand six:
    (1)(i) "assets" means all income and resources of an individual and of
  the  individual's  spouse,  including  income and resources to which the
  individual or the individual's spouse is  entitled  but  which  are  not
  received  because  of  action  by:  the  individual  or the individual's
  spouse; a person with legal authority to act in place of or on behalf of
  the individual or the  individual's  spouse;  a  person  acting  at  the
  direction  or  upon  the  request  of the individual or the individual's
  spouse; or by a court or administrative body with legal authority to act
  in place of or on behalf of the individual or the individual's spouse or
  at  the  direction  or  upon  the  request  of  the  individual  or  the
  individual's spouse;
    (ii)  "blind"  has  the  same  meaning  given  to such term in section
  1614(a)(2) of the federal social security act.
    (iii) "disabled" has the same meaning given to such  term  in  section
  1614(a)(3) of the federal social security act.
    (iv)  "income" has the same meaning given to such term in section 1612
  of the federal social security act.
    (v) "resources" has the same meaning given to  such  term  in  section
  1613 of the federal social security act, without regard to the exclusion
  provided for in subsection (a)(1) of such section.

    (vi)  "look-back  period"  means  the  sixty-month  period immediately
  preceding  the  date  that  an  institutionalized  individual  is   both
  institutionalized and has applied for medical assistance.
    (vii)  "institutionalized  individual"  means any individual who is an
  in-patient  in  a  nursing  facility,  including  an  intermediate  care
  facility for the mentally retarded, or who is an in-patient in a medical
  facility  and  is  receiving  a  level  of  care  provided  in a nursing
  facility, or who is described in section 1902(a)(10)(A)(ii)(VI)  of  the
  federal social security act.
    (viii)  "intermediate care facility for the mentally retarded" means a
  facility certified under article sixteen of the mental hygiene  law  and
  which   has   a  valid  agreement  with  the  department  for  providing
  intermediate care facility services and receiving payment therefor under
  title XIX of the federal social security act.
    (ix) "nursing facility" means a nursing home  as  defined  by  section
  twenty-eight  hundred  one  of the public health law and an intermediate
  care facility for the mentally retarded.
    (x) "nursing facility services" means nursing care and health  related
  services  provided  in a nursing facility; a level of care provided in a
  hospital which is equivalent to the care which is provided in a  nursing
  facility;  and  care, services or supplies provided pursuant to a waiver
  granted pursuant to subsection (c) of section 1915 of the federal social
  security act.
    (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. For purposes of this paragraph:
    (i) the purchase of an annuity shall be treated as the disposal of  an
  asset  for less than fair market value unless: the state is named as the
  beneficiary in the first position for  at  least  the  total  amount  of
  medical  assistance  paid  on  behalf  of the annuitant, or the state is
  named in the second position  after  a  community  spouse  or  minor  or
  disabled  child  and  is named in the first position if such spouse or a
  representative of such child disposes of any  such  remainder  for  less
  than  fair  market  value;  and  the  annuity  meets the requirements of
  section 1917(c)(1)(G) of the federal social security act;
    (ii) the purchase of a life estate interest in another  person's  home
  shall  be  treated as the disposal of an asset for less than fair market
  value unless the purchaser resided in such home for a period of at least
  one year after the date of purchase;
    (iii) the purchase of a promissory note, loan, or  mortgage  shall  be
  treated  as  the  disposal  of  an asset for less than fair market value
  unless such note, loan, or mortgage meets the  requirements  of  section
  1917(c)(1)(I) of the federal social security act.
    (4)  Notwithstanding  the  provisions of this paragraph, an individual
  shall not be ineligible for  services  solely  by  reason  of  any  such
  transfer to the extent that:
    (i)   in  the  case  of  an  institutionalized  individual  the  asset
  transferred was a home and title to the home was transferred to: (A) the
  spouse of the individual; or (B) a child of the individual who is  under
  the  age  of  twenty-one years or blind or disabled; or (C) a sibling of
  the individual who has an equity interest in such home and  who  resided

  in  such  home  for a period of at least one year immediately before the
  date the individual became an institutionalized  individual;  or  (D)  a
  child of the individual who was residing in such home for a period of at
  least  two  years  immediately  before the date the individual became an
  institutionalized individual, and who provided care  to  the  individual
  which  permitted  the  individual  to  reside  at home rather than in an
  institution or facility; or
    (ii) the assets: (A) were transferred to the individual's  spouse,  or
  to  another for the sole benefit of the individual's spouse; or (B) were
  transferred from the individual's spouse to another for the sole benefit
  of the individual's spouse; or (C) were transferred to the  individual's
  child who is blind or disabled, or to a trust established solely for the
  benefit  of  such  child; or (D) were transferred to a trust established
  solely for the benefit of an individual under sixty-five  years  of  age
  who is disabled; or
    (iii)  a  satisfactory showing is made that: (A) the individual or the
  individual's spouse intended to dispose of the  assets  either  at  fair
  market  value,  or  for  other valuable consideration; or (B) the assets
  were transferred exclusively for a purpose other  than  to  qualify  for
  medical  assistance;  or  (C)  all assets transferred for less than fair
  market value have been returned to the individual; or
    (iv) denial of eligibility would cause an undue  hardship,  such  that
  application  of  the  transfer  of  assets  provision  would deprive the
  individual of medical care such that the  individual's  health  or  life
  would  be endangered, or would deprive the individual of food, clothing,
  shelter, or other necessities of life. The commissioner of health  shall
  develop  a  hardship waiver process which shall include a timely process
  for determining whether an undue hardship waiver will be granted  and  a
  timely process under which an adverse determination can be appealed. The
  commissioner  of  health  shall  provide  notice  of the hardship waiver
  process in writing to those individuals who are required to comply  with
  the  transfer  of  assets  provision  under  this  section.  If  such an
  individual is an institutionalized individual, the facility in which  he
  or  she  is residing shall be permitted to file an undue hardship waiver
  application on behalf  of  such  individual  with  the  consent  of  the
  individual or the personal representative of the individual.
    (5)  Any  transfer  made  by  an individual or the individual's spouse
  under subparagraph three of this paragraph shall cause the person to  be
  ineligible  for  services  for  a  period equal to the total, cumulative
  uncompensated value of  all  assets  transferred  during  or  after  the
  look-back  period,  divided  by  the  average  monthly  costs of nursing
  facility services provided to a private patient for a  given  period  of
  time  at  the  time  of  application,  as  determined  pursuant  to  the
  regulations of the department. For purposes of  this  subparagraph,  the
  average  monthly costs of nursing facility services to a private patient
  for a given period of time at the time of application shall be  presumed
  to  be one hundred twenty percent of the average medical assistance rate
  of payment as of the first day of  January  of  each  year  for  nursing
  facilities within the region where the applicant resides, as established
  pursuant to paragraph (b) of subdivision sixteen of section twenty-eight
  hundred  seven-c  of  the public health law. The period of ineligibility
  shall begin the first day of a month during or after which  assets  have
  been  transferred  for less than fair market value, or the first day the
  otherwise eligible individual is receiving services  for  which  medical
  assistance  coverage would be available based on an approved application
  for such care but for the  provisions  of  subparagraph  three  of  this
  paragraph,  whichever  is  later,  and which does not occur in any other
  periods of ineligibility under this paragraph.

    (6) In the case of an asset held  by  an  individual  in  common  with
  another  person  or  persons  in  a joint tenancy, tenancy in common, or
  similar arrangement, the asset, or the affected portion  of  the  asset,
  shall  be  considered  transferred by such individual when any action is
  taken, either by such individual or by any other person, that reduces or
  eliminates such individual's ownership or control of such asset.
    (7)  In  the  case  of  a  trust  established  by  the  individual, as
  determined pursuant to the regulations of the department,  any  payment,
  other  than  a  payment  to or for the benefit of the individual, from a
  revocable trust is  considered  to  be  a  transfer  of  assets  by  the
  individual  and  any  payment,  other  than to or for the benefit of the
  individual, from the portion of an irrevocable trust  which,  under  any
  circumstance, could be made available to the individual is considered to
  be a transfer of assets by the individual and, further, the value of any
  portion  of  an irrevocable trust from which no payment could be made to
  the individual under any circumstances is considered to be a transfer of
  assets by the individual for purposes of this section as of the date  of
  establishment  of the trust, or, if later, the date on which the payment
  to the individual is foreclosed.
    (f) The commissioner shall promulgate such rules  and  regulations  as
  may be necessary to carry out the provisions of this subdivision.
    * 6.  a.  The  commissioner  of  health  shall  apply  for  a home and
  community-based services waiver pursuant to subdivision (c)  of  section
  nineteen  hundred fifteen of the federal social security act in order to
  provide home  and  community-based  services,  not  included  under  the
  medical assistance program.
    b. A person eligible for participation in the waiver program shall:
    (i) be eighteen years of age or under;
    (ii)  be  physically  disabled,  according to the federal supplemental
  security income program criteria, including but not limited to a  person
  who is multiply disabled;
    (iii) require the level of care provided by a nursing facility or by a
  hospital;
    (iv)  be  capable of being cared for in the community if provided with
  case management services and/or other services specified in paragraph  f
  of  this  subdivision, in addition to other services provided under this
  title, as determined by the assessment required by paragraph d  of  this
  subdivision;
    (v) meet the requirements of paragraph i of this subdivision; and
    (vi)   meet   such  other  criteria  as  may  be  established  by  the
  commissioner as may be necessary to administer the  provisions  of  this
  subdivision in an equitable manner.
    c.  Social  services districts shall assess the eligibility of persons
  in accordance with  the  provisions  of  paragraphs  b  and  d  of  this
  subdivision  and shall refer persons who appear to meet the criteria set
  forth in such paragraphs to the commissioner of health for consideration
  for participation in the waiver  program  and  final  determinations  of
  their eligibility for participation in the waiver program.
    d.  The  commissioner  of health shall designate persons to assess the
  eligibility of persons in accordance with paragraphs b  and  c  of  this
  subdivision under consideration for participation in the waiver program.
  Persons  designated  by  such  commissioner  may  include  the  person's
  physician,  a  representative  of  the  social  services   district,   a
  representative  of  the provider of a long term home health care program
  or certified home health agency and, where  appropriate,  the  discharge
  coordinator  of  the hospital or nursing facility and such other persons
  as such commissioner deems appropriate. The  assessment  shall  include,
  but  need  not  be  limited  to,  an  evaluation of the medical, social,

  habilitation, and environmental needs of the person and shall  serve  as
  the  basis  for  the development and provision of an appropriate plan of
  care for the person.
    e. Prior to a person's participation in the waiver program, the social
  services  district  or the commissioner of health, as appropriate, shall
  undertake or arrange for the development of a written plan of  care  for
  the  provision  of services consistent with the level of care determined
  by the assessment,  in  accordance  with  criteria  established  by  the
  commissioner of health.
    f.  Home and community-based services which may be provided to persons
  specified  in  paragraph  b  of  this  subdivision  include:  (i)   case
  management  services; (ii) respite services; (iii) home adaptation; (iv)
  hospice and palliative care  services;  and  (v)  such  other  home  and
  community-based  services, other than room and board, as may be approved
  by the secretary of the federal department of health and human services.
    g. Social services districts shall designate who may provide the  home
  and   community-based   services  identified  in  paragraph  f  of  this
  subdivision, subject to the approval of the commissioner of health.
    h. Notwithstanding any other provision of this chapter  or  any  other
  law  to  the  contrary,  for  purposes of determining medical assistance
  eligibility for persons specified in paragraph b  of  this  subdivision,
  the  income  and  resources of responsible relatives shall not be deemed
  available for as long as the person meets the criteria specified in this
  subdivision.
    i. Before a person may participate in the waiver program specified  in
  paragraph  a  of  this  subdivision,  the  department  of  health  shall
  determine that the annual medical assistance expenditures for  home  and
  community-based  services  for  all  persons participating in the waiver
  program would not exceed the annual medical assistance expenditures  for
  nursing  facility  and  hospital  services  for all such persons had the
  waiver not been granted.
    j. The commissioner shall review the plans  of  care  and  expenditure
  estimates   determined   by  social  services  districts  prior  to  the
  participation of any person in the waiver program.
    k. This subdivision shall be  effective  only  if,  and  as  long  as,
  federal  financial  participation is available for expenditures incurred
  under this subdivision.
    * NB Repealed December 31, 2013
    6-a. a. The commissioner of health shall apply for a nursing  facility
  transition  and diversion medicaid waiver pursuant to subdivision (c) of
  section nineteen hundred fifteen of the federal social security  act  in
  order  to  provide  home and community based services to individuals who
  would otherwise be cared for in a nursing  facility  and  who  would  be
  considered  to  be  part of an aggregate group of individuals who, taken
  together, will be cared for at less cost  in  the  community  than  they
  would  have  otherwise and to provide reimbursement for several home and
  community  based  services  not  presently  included  in   the   medical
  assistance  program.  The  initial application shall provide for no less
  than five thousand persons to be eligible to participate in  the  waiver
  spread over the first three years and continue to increase thereafter.
    b.  A  person  eligible  for  participation  in  the  nursing facility
  transition and diversion medicaid waiver program shall:
    (i) be at least eighteen years of age;
    (ii) be eligible for and in receipt of medicaid authorization for long
  term care services, including nursing facility services;
    (iii) have resided in a nursing facility and/or have been assessed and
  determined to require the level of care provided by a nursing facility;

    (iv) be capable of residing in the community if provided with services
  specified in paragraph f of  this  subdivision,  in  addition  to  other
  services  provided  under  this  title,  as determined by the assessment
  required by paragraph d of this subdivision; and
    (v) meet such other criteria as may be established by the commissioner
  of  health  as  may  be  necessary  to  administer the provision of this
  subdivision in an equitable manner.
    c. The department of health shall develop such waiver  application  in
  conjunction   with  independent  living  centers,  representatives  from
  disability and senior groups and such other interested  parties  as  the
  department shall determine to be appropriate.
    d.  The  commissioner  of  health  shall  contract with not-for-profit
  agencies around the state that have experience with providing  community
  based services to individuals with disabilities, hereinafter referred to
  as  regional  resource development specialists, who shall be responsible
  for  initial  contact  with  the  prospective  waiver  participant,  for
  assuring  the  waiver  candidates  have  choice  in  selecting a service
  coordinator and other providers, and for assessing applicants  including
  decisions for eligibility for participation in the waiver, which contain
  the  original  service  plan  and  all subsequent revised service plans.
  Regional resource  development  specialists  shall  be  responsible  for
  approving  service  plans  and  the  department  of health shall provide
  technical assistance and oversight.
    e. Prior to the  person's  participation  in  the  waiver  program,  a
  service coordinator approved by the department of health shall undertake
  the  development of a written plan of care for the provision of services
  consistent with the level of care determined by an  initial  assessment,
  in  accordance  with criteria established by the commissioner of health.
  Such plans shall set forth the type of services  to  be  furnished,  the
  amount,  the  frequency  and  duration  of  each service and the type of
  providers to furnish each service.
    f. Nursing facility transition and diversion  services  which  may  be
  provided  to  persons specified in paragraph b of this subdivision shall
  be established and defined as part of the waiver application development
  process specified in paragraph c of this subdivision  and  may  include:
  (i)  case  management  services;  (ii)  personal care; (iii) independent
  living skills training; (iv)  environmental  accessibility  adaptations;
  (v)  costs  of community transition services; (vi) assistive technology;
  (vii)  adult  day  health;  (viii)  staff  for  safety  assurance;  (ix)
  non-medical  support  services  needed  to  maintain  independence;  (x)
  respite services; and (xi) such other home and community based  services
  as  may be approved by the secretary of the federal department of health
  and human services.
    g. The department of  health  shall  designate  who  may  provide  the
  nursing   facility  transition  and  diversion  services  identified  in
  paragraph f  of  this  subdivision,  subject  to  the  approval  of  the
  commissioner of health.
    h.  Before  a  person may participate in the nursing transition waiver
  program specified in this subdivision, the regional resource development
  specialists shall determine that:
    (i) the individual is at least eighteen years of age and eligible  for
  and  in  receipt  of medicaid authorization for long term care services,
  including nursing facility services; and
    (ii) the individual resides in a  nursing  facility  and/or  has  been
  assessed and determined to require nursing facility care.
    7.  a.  The  commissioner  of  health  shall  apply  for  a  home  and
  community-based waiver, pursuant to subdivision (c) of section  nineteen
  hundred  fifteen of the federal social security act, in order to provide

  home and community-based services not presently included in the  medical
  assistance program.
    b. Persons eligible for participation in the waiver program shall:
    (i) be eighteen years of age or under;
    (ii)  have  a  developmental  disability,  as  such term is defined in
  subdivision twenty-two of section 1.03 of the mental hygiene law;
    (iii) demonstrate complex health care needs, as defined in paragraph c
  of this subdivision;
    (iv) require the level  of  care  provided  by  an  intermediate  care
  facility for the developmentally disabled;
    (v)  not  be  hospitalized or receiving care in a nursing facility, an
  intermediate care facility for the developmentally disabled or any other
  institution;
    (vi) be capable of being cared for in the community if  provided  with
  case  management  services,  respite  services, home adaptation, and any
  other home and community-based services, other than room and  board,  as
  may be approved by the secretary of the federal department of health and
  human services, in addition to other services provided under this title,
  as  determined  by  the  assessment  required  by  paragraph  f  of this
  subdivision;
    (vii) be ineligible for medical  assistance  because  the  income  and
  resources  of  responsible relatives are deemed available to him or her,
  causing him or her to exceed the income or  resource  eligibility  level
  for such assistance;
    (viii)  be  capable  of  being cared for at less cost in the community
  than in an intermediate care facility for the developmentally  disabled;
  and
    (ix)   meet   such  other  criteria  as  may  be  established  by  the
  commissioner of health, in conjunction with the commissioner  of  mental
  retardation  and  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
  mental  retardation  and  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 of
  mental retardation and  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 mental retardation
  and developmental disabilities  as  required  by  paragraph  d  of  this
  subdivision.
    f. The commissioner of health, in conjunction with the commissioner of
  mental  retardation  and  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
  of mental retardation and 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  mental  retardation
  and  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 of mental  retardation  and  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 of mental retardation and
  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
  mental  retardation  and  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
  mental retardation and 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.
    8.  Notwithstanding  any inconsistent provision of this chapter or any
  other law to the contrary, income  and  resources  which  are  otherwise
  exempt  from  consideration  in  determining  a person's eligibility for
  medical care, services and supplies available under this title, shall be
  considered available for the payment or part payment  of  the  costs  of
  such  medical care, services and supplies as required by federal law and
  regulations.
    9. a. The commissioner shall apply for a general waiver,  pursuant  to
  subdivision  (c)  of  section  nineteen  hundred  fifteen of the federal
  social security act, in order to provide medical assistance for  persons
  specified  in  paragraphs  b and c of this subdivision and reimbursement
  for several home and community-based services not presently included  in
  the  medical  assistance  program.  If  granted  the general waiver, the
  commissioner may authorize such persons to receive  services  under  the
  general  waiver to the extent funds are appropriated for transfer to the
  department for the state share of medical assistance payments  for  such
  waiver services from the budget of the office of mental health.
    b. Persons eligible for inclusion in the general waiver shall:
    (i) be under eighteen years of age;
    (ii)  have  a  mental  illness, as such term is defined in subdivision
  twenty of section 1.03 of the mental hygiene law;
    (iii) demonstrate complex health  or  mental  health  care  needs,  as
  defined in paragraph d of this subdivision;
    (iv)  require  the  level of care provided by a hospital as defined in
  subdivision ten of section 1.03 of the mental hygiene law which provides
  intermediate or long-term care and treatment, or  within  the  past  six
  months  have  been hospitalized for at least thirty consecutive days, or
  have resided in  such  a  hospital  for  at  least  one  hundred  eighty
  consecutive days;
    (v)  be  capable  of being cared for in the community if provided with
  case  management  services,  clinical  interventions,  crisis  services,
  social  training, rehabilitation services, counseling, respite services,
  medication    therapy,    partial     hospitalization,     environmental
  modifications,  educational  and related services, and/or medical social
  services, in addition to other services, as determined by the assessment
  required by paragraph g of this subdivision and included in the  written
  plan of care developed pursuant to paragraph h of this subdivision;
    (vi)  be  eligible  or,  if  discharged, would be eligible for medical
  assistance, or are ineligible for medical assistance because the  income
  and  resources  of responsible relatives are or, if discharged, would be
  deemed available to such persons causing them to exceed  the  income  or
  resource eligibility level for such assistance;
    (vii) be capable of being cared for at less cost in the community than
  in  a  hospital,  as  defined  in subdivision ten of section 1.03 of the
  mental hygiene law; and
    (viii)  meet  such  other  criteria  as  may  be  established  by  the
  commissioner  of mental health, in conjunction with the commissioner, as
  may be necessary to administer the provisions of this subdivision in  an
  equitable  manner,  including  those  criteria  established  pursuant to
  paragraph e of this subdivision.
    c. Persons eligible for inclusion in the general waiver shall meet all
  the requirements set  forth  in  subparagraphs  (i)  through  (viii)  of
  paragraph  b  of this subdivision; and shall be eligible for, shall have
  applied for, or shall reside in an institutional placement  including  a

  hospital  as  defined  in  subdivision ten of section 1.03 of the mental
  hygiene law which provides intermediate or long-term care and treatment.
    d.  For purposes of this subdivision, persons who "demonstrate complex
  health or mental health care needs", shall be  defined  as  persons  who
  require  medical or mental health therapies, care or treatments that are
  designed to replace or compensate for a vital functional  limitation  or
  to  avert  an  immediate  threat  to  life; that is, persons who rely on
  mental health care, nursing care, monitoring, or prescribed  medical  or
  mental  health  therapy  for  the  maintenance of quality of life over a
  period expected to extend beyond twelve months.
    e.  The  commissioner  of  mental  health,  in  conjunction  with  the
  commissioner,   shall   establish  selection  criteria  to  ensure  that
  participants are those who are most in  need.  Such  selection  criteria
  shall   include,   but  not  be  limited  to:  the  need  for  continued
  hospitalization or the risk of  hospitalization;  the  financial  burden
  imposed upon the family, or which would be imposed upon the family if an
  institutionalized  participant were to be discharged, as a result of the
  child's health or mental health care needs; and the level of  stress  or
  the  anticipated  level  of  stress  within  the  family unit due to the
  unrelieved burden of caring for the child at home.
    f. Social services districts, in conjunction with the office of mental
  health and the local governmental unit as defined in  section  41.03  of
  the  mental  hygiene  law, shall determine the eligibility of persons in
  accordance  with  the  provisions  of  paragraphs  b  and  c   of   this
  subdivision,  as  well  as  the  selection  criteria  established by the
  commissioner and the  commissioner  of  mental  health  as  required  by
  paragraph e of this subdivision.
    g.  The  commissioner  of  mental  health,  in  conjunction  with  the
  commissioner, shall designate persons  to  undertake  an  assessment  to
  determine  the  eligibility of persons under consideration for inclusion
  in the general waiver. Persons  designated  by  such  commissioners  may
  include the potentially eligible person's physician, a representative of
  the  local  governmental  unit as defined in section 41.03 of the mental
  hygiene law, a representative of the appropriate  hospital  or  regional
  office  of  the  office  of mental health, and such other persons as the
  commissioners deem appropriate. The assessment shall include, but not be
  limited to, an evaluation of the mental health,  health,  psycho-social,
  rehabilitation and environmental needs of the person, and shall serve as
  the  basis  for  the development and provision of an appropriate plan of
  care for such person.
    h. Prior to a person's inclusion in the general waiver, the office  of
  mental  health  and  the  local  governmental unit as defined in section
  41.03 of the mental hygiene law, shall  undertake  or  arrange  for  the
  development  of  a  written  plan  of  care, including identification of
  service  providers  if  known,  for  the  provision   of   services   in
  consultation  with  the  individual and their family whenever clinically
  appropriate, consistent  with  the  level  of  care  determined  by  the
  assessment,  in accordance with criteria established by the commissioner
  of mental health, in consultation with the commissioner. If  a  provider
  of services is identified in a written plan of care, such provider shall
  be  designated pursuant to paragraph j of this subdivision. Such plan of
  care shall be  reviewed  by  such  commissioners  and  approved  by  the
  commissioner  of  mental  health  prior  to  the  provision  of services
  pursuant to the general waiver.
    i. Home and community-based services which may be provided to  persons
  specified  in  paragraphs b and c of this subdivision shall, in addition
  to those services otherwise authorized, include but are not  limited  to
  (i)  case management services; (ii) clinical interventions; (iii) crisis

  services;  (iv)  social  training;  (v)  rehabilitation  services;  (vi)
  counseling;  (vii)  respite  services;  (viii)  medication therapy; (ix)
  partial   hospitalization;   (x)   environmental   modifications;   (xi)
  educational  and  related  services;  (xii) medical social services; and
  other services included in the written plan of care  developed  pursuant
  to paragraph h of this subdivision.
    j.  The  office  of  mental  health,  in  conjunction  with the social
  services district and the local governmental unit, shall  designate  who
  may   provide  the  home  and  community-based  services  identified  in
  paragraph i of this subdivision.
    k.  Notwithstanding  any  provision  of  this   chapter   other   than
  subdivision  six  or  seven  of  this  section,  or any other law to the
  contrary, for purposes of determining medical assistance eligibility for
  persons specified in paragraphs b and c of this subdivision, the  income
  and  resources  of  a responsible relative shall not be deemed available
  for as  long  as  the  person  meets  the  criteria  specified  in  this
  subdivision.
    l.  Before a person may participate in the general waiver specified in
  paragraph a of this subdivision, the social services  district  and  the
  office  of  mental  health  shall  determine  that there is a reasonable
  expectation that the annual medical  assistance  expenditures  for  such
  person  under the waiver would not exceed the expenditures for care in a
  hospital, as defined in subdivision ten of section 1.03  of  the  mental
  hygiene law, that would have been made had the waiver not been granted.
    m.  The  commissioner,  in conjunction with the commissioner of mental
  health, shall review the  expenditure  estimates  determined  by  social
  services  districts  and  the  office  of  mental  health,  prior to the
  inclusion of any person in the general waiver.
    n. Within one year of federal waiver approval, and on an annual  basis
  thereafter,  until  such  time  as  the waiver is fully implemented, the
  commissioner of mental health, in  conjunction  with  the  commissioner,
  shall  report  on  the status of the general waiver to the governor, the
  legislature, including the respective chairpersons  of  the  senate  and
  assembly  committees  of  mental  health  and  the  chairs of the senate
  finance and assembly ways and means committees and the director  of  the
  division of the budget. Such report shall specify the number of children
  included  in  the waiver, the geographic distribution of those included,
  health and mental health profiles, utilization and costs of services  by
  region  including  costs avoided in residential treatment facilities and
  inpatient facilities operated by the office of mental health, the length
  of time the children  have  participated  in  the  waiver  and  regional
  information  on  the status of waiting lists for waiver services and for
  services in residential settings, where appropriate.  The  report  shall
  also  provide  follow-up information on children who have withdrawn from
  the waiver, including data on residential program placements.
    o. This subdivision shall be effective if, and  as  long  as,  federal
  financial  participation  is  available  for expenditures incurred under
  this subdivision.
    p. Nothing herein shall be  construed  to  create  an  entitlement  to
  services   under   the   approved  general  waiver  implemented  by  the
  commissioner in accordance with this subdivision.
    11. The commissioner of health shall, consistent with this title, make
  any necessary amendments  to  the  state  plan  for  medical  assistance
  submitted pursuant to section three hundred sixty-three-a of this title,
  in order to ensure federal financial participation in expenditures under
  subparagraphs twelve and thirteen of paragraph (a) of subdivision one of
  this  section.  Notwithstanding  any  other  provision  of  law  to  the
  contrary, medical assistance under subparagraphs twelve and thirteen  of

  paragraph  (a) of subdivision one of this section shall be provided only
  to the extent permitted under federal law, if, for so long  as,  and  to
  the extent that federal financial participation is available therefor.
    12.  (a)  Notwithstanding  any  provision  of law to the contrary, the
  commissioner of health, in consultation with the office of children  and
  family  services,  shall  develop  and  submit  applications for waivers
  pursuant to section nineteen  hundred  fifteen  of  the  federal  social
  security  act  as  may  be  necessary  to  provide  medical  assistance,
  including services not presently  included  in  the  medical  assistance
  program,  for persons described in paragraph (b) of this subdivision. If
  granted such waivers, the commissioner of  health,  on  the  advice  and
  recommendation  of the commissioner of children and family services, may
  authorize such persons to receive such assistance to  the  extent  funds
  are appropriated therefor.
    (b)  Persons  eligible for inclusion in the waiver program established
  by this subdivision shall be residents of New York state under  the  age
  of twenty-one years, who are eligible for care in a medical institution,
  who have had the responsibility for their care and placement transferred
  to the local commissioner of a social services district or to the office
  of  children  and  family  services  as adjudicated juvenile delinquents
  under article three of the family court act, where  placement  is  in  a
  non-secure setting, and who:
    (i)  have  a  diagnosis  of  a  mental  disorder under the most recent
  edition of the Diagnostic and Statistical Manual of Mental Disorders;
    (ii) have a diagnosis of a  developmental  disability  as  defined  in
  section 1.03 of the mental hygiene law; or
    (iii) have a physical disability.
    (c)  Services  which may be provided to persons specified in paragraph
  (b) of this subdivision, in addition to services  otherwise  authorized,
  may include but are not limited to:
    (i)  services  that  will permit children to be better served, prevent
  institutionalization,  and  allow   utilization   at   lower-levels   of
  institutional care;
    (ii) case management services;
    (iii) respite services;
    (iv) medical social services;
    (v) nutritional counseling;
    (vi) respiratory therapy;
    (vii) home adaptation and/or environmental modifications;
    (viii) clinical interventions;
    (ix) crisis services;
    (x) social training;
    (xi) habilitation and rehabilitation services;
    (xii) counseling;
    (xiii) medication therapy;
    (xiv) partial hospitalization;
    (xv) educational and related services; and
    (xvi) other services included in the written plan of care.
    (d)  Notwithstanding any provision of this chapter or any other law to
  the contrary, for purposes of determining medical assistance eligibility
  for persons specified in paragraph (b) of this subdivision,  the  income
  and  resources  of  a  legally  responsible relative shall not be deemed
  available for as long as the person meets the criteria specified in this
  subdivision; provided, however, that such income shall  continue  to  be
  deemed  unavailable  should responsibility for the care and placement of
  the person be returned to his or her parent or other legally responsible
  person.

    (e) Before a person may participate in the waiver program  established
  by  this  subdivision,  the  social  services  district that is fiscally
  responsible for the person shall determine that there  is  a  reasonable
  expectation  that annual medical assistance expenditures for such person
  will not exceed federal requirements.
    (f)  The eligibility and benefits authorized by this subdivision shall
  be applicable if, and as long as,  federal  financial  participation  is
  available   for   expenditures  incurred  under  this  subdivision.  The
  eligibility and benefits authorized by this subdivision shall not  apply
  unless  all  necessary  approvals  under federal law and regulation have
  been obtained to receive federal financial participation in the costs of
  services provided pursuant to this subdivision.
    (g) Nothing in this  subdivision  shall  be  construed  to  create  an
  entitlement  to  services  under  the waiver program established by this
  subdivision.
    (h) A person participating in the waiver program established  by  this
  subdivision  may  continue  participation  in the program until it is no
  longer consistent with the  plan  of  care,  or  until  age  twenty-one,
  whichever  occurs earlier, notwithstanding the person's status as having
  been discharged from the care and placement of the local commissioner of
  a social services district or the commissioner of  children  and  family
  services, including adoption.