366 - Eligibility.
§ 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, orcertified 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: (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 (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 povertyline (as defined and annually revised by the federal office of management and budget) for a household of the same size; or (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 aregularly 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 commissionerconsistent 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 beequal 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 inthe 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