VOLUME A-1 (Title 18)

Chapter II - Regulations of the Department of Social Services

CHAPTER II

Regulations of the Department of Social Services
PART

VOLUME A
Subchapter A General Welfare 300
Subchapter B Public Assistance 349

VOLUME B
Subchapter C Social Services 400
Subchapter D Adult-Care Facilities 485

VOLUME C
Subchapter E Medical Care 500
Subchapter F Finance; Claims for Reimbursement by Social Services

Districts 575
Subchapter G Statistics 650
Subchapter H Personnel 674
Subchapter I Acquisition of Real Property for Department Purposes 700
Subchapter J Commission for the Visually Handicapped 725
Subchapter K Standards for Office Space and Facilities 750
Subchapter L Homeless Housing and Assistance Program 800

SubChapter B - Public Assistance

Article 2 - Determination of Eligibility--Categorical

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Part 360 - MEDICAL ASSISTANCE

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Effective Date: 
Wednesday, May 7, 2014
Statutory Authority: 
Constitution, art. XVII, Section 2; Social Services Law, Section 17, 20, 34, 104-b, 131, 131-a, 142-a, 363-a, 363-b, 364, 364-i, 364-j (20), (21), 365, 365-a, 365-b, 366, 367-a, 368-a, 369, 373-a, 407; L. 1966, chs. 256, 257; L. 1971, ch. 110, Section 83;

SubPart 360-1 - INTRODUCTION AND DEFINITIONS

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Section 360-1.1 - Introduction.

Section 360-1.1 Introduction. (a) What is in this Part. This Part describes who is eligible for medical assistance, how to apply, how eligibility is determined, and what eligible recipients are entitled to.

(b) Related regulations. Regulations at Subchapter E (Parts 500 through 541) of this Title establish policies and standards for provision of medical assistance services, list fees and reimbursement for specific medical assistance services, and set forth requirements for authorization of medical care and billing for provided services.

 

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Section 360-1.2 - Applicability of other rules and regulations to medical

360-1.2 Applicability of other rules and regulations to medical assistance (MA). All departmental regulations relating to public assistance and care apply to medical assistance except those that are inconsistent with the laws and regulations governing the medical assistance program found at:

(a) Title 11 of article 5 of the Social Services Law; and

(b) Part 360 and Part 500 through 541 of this Title.

 

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Section 360-1.3 - Brief overview of eligibility.

360-1.3 Brief overview of eligibility. (a) As a general rule, a person who is eligible for the home relief, aid to dependent children, or supplemental security income programs or who is a recipient of foster care maintenance payments or adoption assistance payments under title IV-E of the Social Security Act is eligible for medical assistance. In addition, certain other categories of people are eligible for medical assistance if their income and resources are insufficient to meet the cost of necessary medical care and supplies. Some of these categories include persons under the age of 21, persons 65 years of age or older, pregnant women, persons who are certified blind or certified disabled, and persons who would be eligible for aid to dependent children if they have less income or resources. A complete list of eligible groups is found in section 360-3.3 of this Part.

(b) Types of services provided under the medical assistance program. The medical assistance program provides payment for medically necessary services and supplies. These include: the services of qualified physicians, dentists, optometrists and nurses; laboratory, physical therapy and X-ray services; care in hospitals and residential health care facilities; home health and personal care services; and supplies such as drugs, eyeglasses, prosthetic appliances and other medical or surgical supplies. Complete lists of covered care, services and supplies are found in Parts 505 through 510 of this Title.

 

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Section 360-1.4 - Definitions.

360-1.4 Definitions. When used in this Part, unless expressly stated otherwise or unless the context of subject matter requires a different interpretation:

(a) ADC means aid to dependent children under title 10 of article 5 of the Social Services Law and under Part 369 of this Title.

(b) Allocation means an amount of income set aside, when computing the net available income of an aged, certified blind or certified disabled MA applicant or recipient, to meet the needs of certain other household members.

(c) Chronic care budgeting is a budgeting procedure used for individuals who are in permanent absence status, as defined in subdivision (k) of this section. For recipients in permanent absence status, chronic care budgeting will begin on the first day of the calendar month following the month in which the applicant/recipient is determined to be in permanent absence status.

(d) Days means calendar days.

(e) Deeming refers to a budgeting procedure used in determining the medical assistance eligibility of an aged, certified blind, or certified disabled applicant/recipient, in which certain income and resources of legally responsible relatives are considered available to the applicant/recipient. Legally responsible relative is defined in subdivision (h) of this section.

(f) Homestead means the primary residence occupied by a medical assistance applicant/recipient and/or members of his/her family. Family members may include the applicant's/recipient's spouse, minor children, certified blind or certified disabled children, and other dependent relatives. The homestead includes the home, land and integral parts such as garages and outbuildings. The homestead may be a condominium, cooperative apartment or mobile home. Vacation homes, summer homes or cabins are not considered to be homesteads.

(g) HR means home relief provided under title 3 of article 5 of the Social Services Law and under Part 370 of this Title.

(h) Legally responsible relative means a person who is legally responsible for the support and care of one or more relatives. For medical assistance purposes, a legally responsible relative is:

(1) a spouse of a medical assistance applicant or recipient; or

(2) a parent of a child under the age of 21. A parent is not financially liable for a certified blind or certified disabled child expected to be living separately from the parental household for 30 days or more, even if the child returns to the parental household for periodic visits.

(i) MA means medical assistance for needy persons provided under title 11 of article 5 of the Social Services Law.

(j) Medical facility means any hospital, skilled nursing facility, intermediate care facility, inpatient psychiatric facility or inpatient alcoholism facility where MA may be provided and which operates in accordance with the Public Health Law and/or other applicable laws.

(k) Permanent absence status means that an individual is not expected to return home or that an individual is an institutionalized spouse as defined in section 360-4.10 of this Part. It will be presumed that an individual will not return home if:

(1) a person enters a skilled nursing or intermediate care facility;

(2) a person is initially admitted to acute care and is then transferred to an alternative level of care, pending placement in a residential health care facility (RHCF); or

(3) a person without a community spouse remains in an acute care hospital for more than six calendar months.

Adequate medical evidence may overcome the presumptions set forth in paragraphs (1) through (3) of this subdivision.

(1) Public institution means an institution that is the responsibility of a governmental unit or which is under the administrative control of a governmental unit. The term public institution does not include:

(1) a medical facility;

(2) a community residence serving 16 or fewer residents; or

(3) a child-care institution accommodating 25 or fewer children.

(m) Residential health care facility means a nursing home or a facility providing health-related service. Health-related service means service in a facility which provides or offers lodging, board and physical care including but not limited to the recording of health information, dietary supervision and supervised hygienic services incident to such service.

(n) Social security refers to old age, survivors, and disability insurance.

(o) SSI means supplemental security income, and refers to a federally supported and administered benefit program for eligible individuals or couples who are 65 years of age or older, or who are certified blind or certified disabled.

(p) Temporary absence means a time when a person is absent from his/her primary residence and is expected to return. Reasons for temporary absence may include employment, hospitalization, military service, vacation, education or visits. A period of temporary absence will be presumed to exist if:

(1) the person is not an institutionalized spouse, as defined in section 360-4.10 of this Part, and returns to his/her primary residence in the month in which he/she left or the following month;

(2) a person without a community spouse is in an acute care hospital for six calendar months or less;

(3) a person with a community spouse is expected to be in an acute care hospital for less than 30 consecutive days; or

(4) a person with a community spouse is expected to receive home and community-based services provided pursuant to a waiver under section 1915(c) of the Social Security Act for less than 30 consecutive days.

The presumptions set forth in paragraphs (1) and (2) of this subdivision may be overcome by adequate evidence. Adequate medical evidence is required to overcome the presumptions set forth in paragraphs (3) and (4) of this subdivision.

(q) Title IV-E refers to title IV, part E of the Social Security Act which pertains to Federal payments for foster care and adoption assistance.

(r) Poverty line means the federal income official poverty line applicable to a family of the same size as the applicant's/recipient's family. The Federal Office of Management and Budget defines and annually revises federal income official poverty lines in accordance with section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (P.L. 97-35). Section 360-4.7(b) of this Part contains a schedule of poverty lines.

 

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SubPart 360-2 - APPLICATION PROCESS

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Effective Date: 
Wednesday, April 24, 2013

Section 360-2.1 - Introduction.

Section 360-2.1 Introduction. This Subpart explains the application/recertification process for MA including:

 

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Section 360-2.2 - Applying for MA.

360-2.2 Applying for MA. (a) ADC and HR applicants. Persons applying for ADC or HR on the State-prescribed form are not required to make a separate application for MA.

(1) Persons determined to be eligible for ADC or HR are automatically eligible for MA if they meet the general conditions for MA eligibility in section 360-3.2 of this Part.

(2) Persons determined to be ineligible for ADC or HR will have their MA eligibility determined separately, unless they have stated in writing that they do not want their MA eligibility determined.

(b) SSI applicants. (1) Persons determined to be eligible for SSI from the Social Security Administration are automatically eligible for MA if they meet the general conditions for MA eligibility in section 360-3.2 of this Part. No separate application for MA is required.

(2) Persons determined to be ineligible for SSI must make a separate application if they wish to have MA eligibility determined, assuming they have not already done so.

(c) Title IV-E children. (1) A child receiving foster care maintenance payments pursuant to title IV-E of the Social Security Act or on whose behalf a title IV-E adoption assistance agreement is in effect is automatically eligible for MA. The child must be living in the state and meet the general conditions of MA eligibility in section 360-3.2 of this Part. No separate application for MA is required.

(2) If a child is determined ineligible under title IV-E, a separate application must be made in order to have MA eligibility determined, assuming this has not already been done.

(d) Application for MA only. (1) Persons may apply for MA without applying for ADC, HR, or SSI. Persons may also apply for MA separately from an application for SSI. Such applicants must complete and sign a State-prescribed form in ink. Spouses living together and applying for MA together must both sign the State-prescribed application form. The form may be completed and signed by anyone the applicant designates to represent him/her in the application process. The completed form must be returned to the social services district in the county in which the applicant lives.

(2) (i) HR eligibility will be determined for MA applicants who:

(a) are not eligible under the assistance programs listed in section 360-3.3(a) (2)-(6) of this Part; and

(b) do not meet the requirements, other than financial, for medically needy status in section 360-3.3(b) of this PART.

(ii) Generally, eligibility for MA on the basis of HR eligibility will be determined according to Parts 352 and 370 of this Title. Exceptions to this general rule are set forth below.

(a) A homestead, as defined in section 360-1.4(f) of this Part, is exempt from consideration in determining eligibility.

(b) Lump-sum and windfall payments will be counted as income in the month received. Any portion of such payments remaining in subsequent months will be counted as an available resource.

(c) A child's savings of under $500 accumulated from gifts from nonlegally responsible relatives or from the child's own wages will be disregarded in determining eligibility.

(d) The provisions of section 352.23(b)(6) of this Title regarding the sale of real property do not apply. If the value of the total resources of the applicant/recipient is over the maximum resource level, the applicant/recipient will be ineligible for MA.

(e) Recertification. Social Services districts must redetermine an MA recipient's eligibility at least once every 12 months and whenever there is a change in the recipient's circumstances that may affect eligibility. The district may redetermine eligibility more frequently.

(1) MA recipients who are not eligible for ADC, HR, SSI, title IV-E, or the adoption assistance benefits described in section 360-3.3(a)(6) of this Part must apply for recertification on a State-prescribed form each time MA eligibility is redetermined.

(2) MA recipients who are eligible for ADC, HR, SSI, Title IV-E, or the adoption assistance benefits described in section 360-3.3(a)(6) of this Part will continue to be eligible for MA as long as they are eligible under the other program. No application for recertification is required when MA eligibility is redetermined.

(f) Personal interview for applicants and recipients. (1) The social services district must conduct a personal interview with anyone applying for MA or for recertification of MA, except as provided in paragraphs (2) and (3) of this subdivision. If the applicant/recipient cannot be interviewed due to his/her physical or mental condition, the person who applied on his/her behalf must be interviewed. The district must conduct the interview before making any decision concerning an applicant's/recipient's eligibility for MA. The district does not have to conduct a personal interview when the application for MA is made on behalf of a child in the custody of the State Division for Youth or of a local commissioner of social services. At the interview, an applicant/recipient or his/her representative must be told about the following:

(i) the general eligibility requirements of the MA program;

(ii) the applicant's/recipient's responsibility to provide all information necessary to determine eligibility;

(iii) the applicant's/recipient's and the social services district's responsibility to explore all the facts concerning the applicant's/recipient's eligibility;

(iv) the kinds of information or documents the applicant/recipient must provide to show eligibility, the time when the information and documents must be submitted, and the applicant's/recipient's responsibility to obtain information or documents whenever possible;

(v) the social services district's responsibility to undertake necessary investigation to determine the applicant's/recipient's eligibility;

(vi) the applicant's/recipient's responsibility to inform the district immediately of all changes in circumstances; and

(vii) the availability of other assistance or services for which the applicant/recipient may be eligible.

(2) (i) Social services districts may request a waiver of the personal interview requirement for recertification for aged, certified blind or certified disabled recipients. The request must be sent in writing, by certified mail, to the State Commissioner of Social Services. The request must state the intended duration of the waiver and other conditions the local social services commissioner finds relevant. The local social services commissioner must sign the request. A waiver request may be granted if the social services district demonstrates that alternative procedures have been established to verify that recipients continue to meet all eligibility requirements for MA. The department may require follow-up reports from the social services district to insure that continuing eligibility is being accurately determined. The waiver may be withdrawn or modified, if, through the department's monitoring efforts, it is determined that the statewide medical assistance eligibility error rate may be adversely affected.

(ii) The local social services official will be notified in writing within 45 days of the approval, partial approval or denial of the waiver. If the waiver is denied, the department will inform the district of the reasons for the denial. The department's failure to act within the specified time period does not constitute an automatic approval of the waiver.

 

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Section 360-2.3 - Investigation of eligibility.

Section 360-2.3 Investigation of eligibility. (a) Generally. (1) The social services district has a continuing obligation to collect, verify, record and evaluate factual information concerning an MA applicant's/recipient's eligibility for MA.

(2) The MA applicant/recipient has a continuing obligation to provide accurate and complete information on his/her income, resources, and other factors that affect eligibility. The applicant/recipient must also provide information on the income and resources of a nonapplying legally responsible relative, even if the relative is not living with the applicant/recipient; if the applicant/recipient does not possess this information, he/she must cooperate with the social services district in obtaining it. An applicant/recipient will not have eligibility denied or discontinued solely because he/she does not possess and cannot obtain information about the income or resources of a nonapplying legally responsible relative who is not living with him/her.

(3) The applicant/recipient is the primary source of eligibility information. When an applicant/recipient is unable to document the information provided, the social services district must conduct an investigation to verify such information. The social services district must also conduct such an investigation if it believes that information provided by an applicant/recipient is inaccurate. The district may examine records, other than public records, only with the applicant's/recipient's permission. If the applicant/recipient refuses such permission and the social services district is unable to verify information through public records, the applicant/recipient will be informed that the district is unable to determine MA eligibility. The application then will be denied, or eligibility will be discontinued.

(4) Part 351 of this Title sets forth additional requirements which must be met in the investigation process.

(b) Nonfinancial eligibility requirements. The social services district must verify that applicants and recipients meet the nonfinancial eligibility requirements contained in Subpart 360-3 of this Part.

(c) Financial eligibility requirements. (1) Evaluation of financial circumstances. In determining whether an applicant/recipient is financially eligible for MA under section 360-3.3(b) or 360-3.3(c) of this Part, the social services district must review all sources of income and resources available or potentially available to the applicant/recipient. The district must consider the income and resources of all legally responsible relatives. The review will be based on information in the application and from a personal interview with the applicant/recipient or the person applying on his/her behalf. The district must consider only available income and resources, as defined in Subpart 360-4 of this Part. To be eligible for MA, the applicant must pursue any potential income and resources that may be available. As soon as income or resources become available, the applicant must report them to the district. The district must reevaluate the applicant's eligibility for MA based on the new financial information.

(2) Verification of income. The applicant must submit with his/her application documentation of wages received by all employed family members who are included in the application and by all legally responsible relatives living with the applicant. Acceptable forms of documentation are pay envelopes, wage stubs, or an employer's statement of wages. If the applicant's income varies, the documentation must show all wages earned in the past four weeks. If the applicant cannot supply such documentation, the social services district can accept other forms of information which it determines will verify the wages earned. All other income also must be documented and a determination made as to its availability. The social services district must record the type of information used to verify other available income.

(3) Verification of resources. (i) The applicant may attest to the amount of his or her resources, unless the applicant is seeking coverage for long-term care services. For purposes of this paragraph, long-term care services shall include those services defined in subparagraph (ii) of this paragraph, with the exception of short-term rehabilitation as defined in subparagraph (iii) of this paragraph. The applicant must provide documentation of all available or potentially available resources when applying for long-term care services. The social services district must record the documentation provided and determine the availability of such resources.

(ii) Long-term care services shall include, but not be limited to care, treatment, maintenance, and services: provided in a nursing facility licensed under article twenty-eight of the public health law; provided in an intermediate care facility certified under article sixteen of the mental hygiene law; provided in a residential treatment facility certified by the Commissioner of Mental Health pursuant to Section 31.02(a)(4) of mental hygiene law; provided in a developmental center operated by the Office of Mental Retardation and Developmental Disabilities; provided by a home care services agency, certified home health agency or long-term home health care program as defined in section thirty-six hundred two of the public health law; provided by an adult day health care program in accordance with regulations of the department of health; provided by a personal care provider licensed or regulated by any other state or local agency; provided in a hospital that is equivalent to the level of care provided in a nursing facility; and provided by an assisted living program in accordance with regulations of the department of health. Long-term care services also shall include: private duty nursing; limited licensed home care services; hospice services including services provided by the hospice residence program in accordance with the regulations of the department of health; services provided in accordance with the consumer directed personal assistance program; services provided by the managed long-term care program; personal emergency response services; and care, services or supplies provided by the Care at Home Waiver program, Traumatic Brain Injury Waiver program, or Office of Mental Retardation and Developmental Disabilities Home and Community-Based Waiver program.

(iii) Short-term rehabilitation means one period of certified home health care, up to a maximum of 29 consecutive days, and/or one period of nursing home care, up to a maximum of 29 consecutive days, commenced within a twelve-month period.

(4) If any income or resources are unavailable, the applicant/recipient must submit documentation establishing the unavailability.

(5) The applicant/recipient must satisfactorily explain and/or document how current living expenses are being met.

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Effective Date: 
Wednesday, December 20, 2006

Section 360-2.4 - Decision.

360-2.4 Decision. (a) Time frames.

(1) Except as provided in paragraphs (2) and (3) of this subdivision, the social services district must determine an applicant's eligibility for MA within 45 days of the date of the MA application.

(2) If an applicant's MA eligibility is dependent on disability status, the social services district will determine MA eligibility within 90 days of application. If a decision is not reached within 90 days, the applicant must be sent a statement explaining why.

(3) The district will determine eligibility within 30 days of the date of the MA application if an applicant is:

(i) a pregnant woman or an infant younger than one year of age whose household income does not exceed 200 percent of the applicable Federal poverty level; or

(ii) a child at least one year of age but younger than nineteen years of age whose household income does not exceed 133 percent of the applicable Federal poverty level.

(b) The social services district must determine MA eligibility within the time frames in subdivision (a) of this section except in unusual circumstances including:

(1) when the district cannot reach a decision because the applicant or an examining physician has delayed taking or has not taken a required action, or because medical records have not been received; or

(2) where there is an administrative or other emergency beyond the district's control.

(c) When a social services district determines that an applicant or recipient is eligible for MA, MA will be authorized. Such authorization will be effective back to the first day of the first month for which eligibility is established, except as otherwise provided in this Part. A retroactive authorization will be issued for medical expenses incurred during the three months prior to the month of application for MA, provided the applicant was eligible in the month in which the medical care and services were received. Direct payment to the recipient for paid medical bills will be limited to the MA rate or fee in effect at the time the services were rendered.

 

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Effective Date: 
Wednesday, April 24, 2013

Section 360-2.5 - Notification of acceptance/denial.

360-2.5 Notification of acceptance/denial. The social services district must notify applicants promptly on State-prescribed forms of MA eligibility decisions.

(a) Notice of acceptance. The social services district will provide eligible applicants with a notice on a State-prescribed form accepting the MA application. The notice will explain what MA care and services are authorized. It must also list any limitations. The notice must clearly indicate when only part of the cost of a particular service will be allowed, If an applicant is liable for part of the cost of care, the district will supply information on allowed costs to the applicant's service provided.

(b) Notice of denial. The social services district must provide ineligible applicants with a notice on a State-prescribed form denying the application. The notice of denial must be adequate, as defined in section 358-2.2 of this Title.

(c) If an applicant is denied MA on the basis of a denial of an application for ADC or HR, a single notice may be sent advising the applicant of both determinations. The notice must separately and adequately advise the applicant of the determination of MA ineligibility.

 

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Section 360-2.6 - Changes in circumstances affecting classification or eligibil

360-2.6 Changes in circumstances affecting classification or eligibility. (a) If an MA recipient's circumstances change, the social services district must take action within 30 days to:

(1) change the recipient's classification, when the change affects Federal financial participation;

(2) discontinue eligibility, when the change affects the recipient's eligibility; or

(3) provide the proper category of assistance, when the change affects the recipient's category of assistance.

(b) If a recipient's ADC, HR, SSI, or title IV-E case is discontinued, MA will be continued until the social services district determines the recipient to be ineligible for MA. The district must determine the recipient's continuing eligibility no later than the end of the calendar month following the month in which the recipient was determined ineligible for ADC, HR, SSI, or title IV-E.

(c) The social services district must provide an MA recipient with a notice on a State-prescribed form whenever a change in circumstances causes an increase or reduction in coverage and/or liability, or causes a change in the calculation of the recipient's excess income, even if the amount of the recipient's excess income is not affected. Such notice must meet the requirements of section 358-2.2 of this Title.

(d) Whenever the social services district is informed of a change in a recipient's circumstances, it must review the recipient's need for other assistance or services. The district must inform the recipient of available assistance and services, and help the recipient in obtaining them.

 

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Section 360-2.7 - Termination of MA; notification of discontinuance.

360-2.7 Termination of MA; notification of discontinuance. (a) When a social services district determines that a recipient is no longer eligible for MA, MA will be terminated. The effective date of discontinuance will be the date the recipient becomes ineligible, or a later date if necessary in order to provide the recipient with timely notice of the discontinuance, as required by section 358-3.3 of this Title. Except as limited by the provisions of this subdivision, the effective date of discontinuance may be any day during the month.

(b) The social services district must send a notice of discontinuance on a State-prescribed form to an MA recipient if it determines that the recipient has become ineligible for MA. The notice of discontinuance must be adequate, as defined in section 358-2.2 of this Title.

(c) If the recipient's MA benefits are being stopped for the same reason that his/her ADC or HR benefits are being stopped a single notice may be sent advising the recipient of both actions. The notice must separately and adequately advise the recipient of the proposed discontinuance of MA.

 

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Section 360-2.8 - Right to a conference.

360-2.8 Right to a conference. An MA applicant/recipient who disagrees with a decision of the social services district concerning his/her case may request a conference, as described in Part 358 of this Title. At the conference the applicant/recipient will meet with a district representative having the authority to change the district's decision. The district representative will review the district's decision, answer any questions the applicant/recipient has, and will consider any information the applicant/recipient presents. A request for a conference is not a request for a fair hearing and does not entitle the applicant/recipient to aid continuing pending the outcome of the conference. The applicant/recipient may still request a fair hearing, even if a conference has been requested. However, the deadline for requesting a fair hearing will remain the same whether or not a conference is requested.

 

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Section 360-2.9 - Right to a fair hearing.

360-2.9 Right to a fair hearing. An MA applicant or recipient may request a fair hearing if he/she disagrees with a social services official's decision, action or failure to act. A fair hearing is the procedure which an applicant or recipient can use to appeal certain decisions of a social services district to the State Commissioner of Social Services. A complete explanation of how to request a fair hearing, the grounds for requesting a fair hearing, and the fair hearing process is found in Part 358 of this Title.

 

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SubPart 360-3 - ELIGIBILITY REQUIREMENTS

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Effective Date: 
Wednesday, April 23, 2014

Section 360-3.1 - Introduction.

Section 360-3.1  Introduction. This Subpart contains:

(a) the conditions of MA eligibility;

(b) categories of persons eligible for MA;

(c) categories of persons who may not receive MA;

(d) conditions under which temporary residents of the State can receive MA and conditions under which State residents absent from their social services districts can receive MA;

(e) conditions under which certain hospitalized persons will be granted up to 60 days of presumptive MA eligibility; and

(f) eligibility requirements for catastrophic illness benefits for persons not otherwise eligible for MA.

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Section 360-3.2 - Conditions of eligibility.

360-3.2 Conditions of eligibility. All applicants for and recipients
of MA must meet their requirements in this section to be eligible for
MA.

(a) Applicants/recipients must assign to the department:

(1) any rights to payment for medical care from a third party; and

(2) rights to support specified by a court or administrative order to
be used for medical care.

(b) An individual who has the legal authority to assign the rights of
a person eligible for MA to the support and payments listed in subdivi-
sion (a) of this section (an assignor), including a legally responsible
relative living with such person, must assign those rights to the State
and the social services district on behalf of the person.

(c) Applicants for and recipients of MA must cooperate in good faith
with the State and social services officials in establishing the pater-
nity of a child born out of wedlock; in efforts to locate any absent
parent or putative father; in establishing, modifying, and enforcing
orders of support; and in obtaining support payments or any other
payments or property due such person and due each child, unless the
applicant or recipient is found by the social services district or an
appropriate designee to have good cause for refusing to cooperate in
accordance with the provisions of subdivision (f) of this section.
However, women must not be required as a condition of eligibility for MA
to cooperate during pregnancy, during the 60-day period beginning on the
last day of the pregnancy, or during the remainder of the calendar month
in which such 60th day occurs. The term cooperate includes the follow-
ing:

(1) completing the child support enforcement referral form and, at a
minimum, providing verifiable information on the form sufficient to
identify and locate the absent parent or putative father, including:

(i) the full name and social security number of the absent parent or
putative father; or

(ii) the full name of the absent parent or putative father and at
least two of the following concerning such parent or father:

(a) date of birth;

(b) residential and, if different, mailing address;

(c) telephone number; and

(d) name and address of employer; or

(iii) the full name and any additional information equivalent to the
information contained in subparagraph (i) or (ii) of this paragraph that
leads to the absent parent's or putative father's identity and location;

(2) appearing at the local child support enforcement unit, as neces-
sary, to provide the child support enforcement referral form and such
oral or written information or documentary evidence, known to be
possessed by or reasonably obtainable by the applicant or recipient,
that is relevant to achieving the objectives of this subdivision;

(3) appearing as a witness at court or other hearings or proceedings
necessary to achieve the objectives of this subdivision;

(4) providing information or attesting to the lack of information
under penalty of perjury;

(5) submitting the child and herself or himself to genetic tests,
pursuant to judicial order or administrative direction; and

(6) after an assignment of medical support under this subdivision has
been made, paying to the support collection unit any payments received
from the absent parent which are covered by that assignment.

(d) When an applicant or recipient fails, absent good cause, to
provide verifiable information on the child support enforcement referral
form sufficient to identify and locate the absent parent or putative
father as required by subdivision (c) of this section, the local child
support enforcement unit must determine whether the applicant or recipi-
ent has cooperated in good faith to establish the paternity of the child
and to establish, modify and enforce a support order for the child
pursuant to section 347.5 of this Title.

(e) MA cases must be reported to the local child support enforcement
unit within two working days of continuing assistance following the 60
day period which begins on the last day of pregnancy, except in the case
of an applicant or recipient found, pursuant to paragraph (1) of subdi-
vision (f) of this section, to have good cause for refusing to cooperate
in establishing the paternity of a child and in establishing, modifying
and enforcing a support order for the child. Such cases must be reported
to the local child support enforcement unit, as specified in paragraph
(3) of subdivision (f) of this section.

(f) Good cause for refusing to cooperate.

(1) Claiming good cause for refusing to cooperate.

(i) Opportunity to claim good cause. An applicant for or recipient of
MA will have the opportunity to claim good cause for refusing to cooper-
ate as specified by subdivision (c) of this section.

(ii) Notification to the applicant or recipient. The MA applicant or
recipient shall be notified of the right to claim good cause as an
exception to the cooperation requirement and of all the requirements
applicable to a good cause determination.

(a) Such notice shall be in writing in a form prescribed by the
Department of Health.

(b) The social services district worker or an appropriate designee and
the applicant or recipient shall sign and date a copy of the notice. A
copy of the notice shall be given to the applicant or recipient, and a
signed copy shall be filed in the MA case record.

(iii) Requirements upon applicant or recipient. An applicant for or
recipient of MA who refuses to cooperate, and who claims to have good
cause for refusing to cooperate, has the burden of establishing the
existence of a good cause circumstance and will be required to:

(a) specify the circumstances that the applicant or recipient believes
provide sufficient good cause for not cooperating;

(b) corroborate the good cause circumstances in accordance with
subparagraph (vii) of this paragraph; and

(c) if requested, provide sufficient information (such as the putative
father or absent parent's name and address, if known) to permit an
investigation pursuant to clause (g) of subparagraph (iv) of this para-
graph. If the applicant or recipient does not meet the above require-
ments, the social services district worker or an appropriate designee
shall on that basis determine that good cause does not exist.

(iv) Circumstances under which cooperation is against the best inter-
ests of the child. Cooperation in establishing paternity or seeking
support shall be deemed to be against the best interest of the child
only if:

(a) the applicant's or recipient's cooperation in establishing pater-
nity or securing support is reasonably anticipated to result in:

(1) physical harm to the child for whom support is to be sought;

(2) emotional harm to the child for whom support is to be sought;

(3) physical harm to the parent or caretaker relative with whom the
child is living which reduces such person's capacity to care for the
child adequately;

(4) emotional harm to the parent or caretaker relative with whom the
child is living of such nature or degree that it reduces such person's
capacity to care for the child adequately;

(b) the child for whom support is sought was conceived as a result of
incest or forcible rape; or

(c) legal proceedings for the adoption of the child are pending before
a court of competent jurisdiction; or

(d) the applicant or recipient is currently being assisted by a public
or licensed private social agency to resolve the issue of whether to
keep the child or relinquish him or her for adoption, and discussions
have not gone on for more than three months.

(v) Physical harm and emotional harm defined. Physical harm and
emotional harm must be of a serious nature in order to justify finding
of good cause. A finding of good cause for emotional harm may only be
based on a demonstration of an emotional impairment that substantially
affects the individual's functioning.

(vi) Special considerations related to emotional harm.

(a) For every good cause determination which is based in whole or in
part on the anticipation of emotional harm to the child, the parent or
the caretaker relative, the social services district worker or an appro-
priate designee shall consider the following:

(1) the present emotional state of the individual subject to emotional
harm;

(2) the emotional health history of the individual subject to
emotional harm;

(3) the intensity and probable duration of the emotional upset;

(4) the degree of cooperation to be required; and

(5) the extent of the involvement of the child in the paternity estab-
lishment or support enforcement activity to be undertaken.

(b) The findings with respect to the above factors shall be documented
in the MA case record.

(vii) Proof of good cause claim.

(a) The good cause determination will be based on corroborative
evidence supplied by the applicant or recipient only after the social
services district worker or an appropriate designee has examined the
evidence and found it actually verifies the good cause claim.

(b) The applicant or recipient who claims good cause must provide
corroborative evidence within 20 days from the day the claim was made.
If the social services district worker or an appropriate designee deter-
mines that the applicant or recipient requires additional time because
of the difficulty of obtaining the corroborative evidence, upon supervi-
sory approval, the worker or designee shall allow a reasonable addi-
tional period of time.

(c) Good cause may be corroborated with the following types of
evidence:

(1) birth certificates or medical or law enforcement records which
indicate that the child was conceived as the result of incest or forci-
ble rape;

(2) court documents or other records which indicate that legal
proceedings for adoption are pending before a court of competent juris-
diction;

(3) court, medical, criminal, child protective services, social
services, psychological, or law enforcement records which indicate that
the putative father or absent parent might inflict physical or emotional
harm on the child or caretaker relative;

(4) medical records which indicate emotional health history and pres-
ent emotional health status of the caretaker relative or the child for
whom support would be sought, or written statements from a mental health
professional licensed to practice in New York, indicating a diagnosis or
prognosis concerning the emotional health of the caretaker relative or
the child for whom support would be sought;

(5) a written statement from a public or licensed private social agen-
cy that the applicant or recipient is being assisted by the agency to
resolve the issue of whether to keep the child or relinquish him or her
for adoption; and

(6) sworn statements from individuals, other than the applicant or
recipient, with knowledge of the circumstances which provide the basis
for good cause claim.

(d) If after examining the corroborative evidence submitted by the
applicant or recipient, the social services district worker or an appro-
priate designee determines that additional corroborative evidence is
needed to permit a good cause determination, the worker or designee
will:

(1) promptly notify the applicant or recipient that additional corro-
borative evidence is needed; and

(2) specify the type of document needed.

(e) Upon request, the social services district worker or an appropri-
ate designee will:

(1) advise the applicant or recipient how to obtain the necessary
documents; and

(2) make a reasonable effort to obtain any specific documents which
the applicant or recipient is not reasonably able to obtain without
assistance.

(f) Where a claim is based on the applicant's or recipient's antic-
ipation of physical harm as specified and defined in subparagraphs (iv)
and (v) of this paragraph, and corroborative evidence is not submitted
in support of the claim:

(1) the social services district worker or an appropriate designee
will investigate the good cause claim when the worker or designee
believes that the claim is credible without corroborative evidence, and
corroborative evidence is not available;

(2) good cause will be found if the claimant's sworn statement and the
investigation which is conducted satisfy the social services district
worker or an appropriate designee that the applicant or recipient has
good cause for refusing to cooperate; and

(3) a determination that good cause exists will be reviewed and
approved or disapproved by supervisory personnel and the findings will
be recorded in the MA case record.

(g) The good cause claim may be further verified if the applicant's or
recipient's statement of the claim required by this subparagraph,
together with the corroborative evidence, does not provide sufficient
basis for making a determination. When the social services district
worker or an appropriate designee determines that it is necessary, the
worker or designee may conduct an investigation of good cause claims to
determine that good cause does or does not exist.

(h) If the social services district worker or an appropriate designee
conducts an investigation of a good cause claim, the worker or designee
will:

(1) contact the absent parent or putative father from whom support
would be sought if such contact is determined to be necessary to estab-
lish the good cause claim; and

(2) prior to making such necessary contact, notify the applicant or
recipient to enable the applicant or recipient to:

(i) present additional corroborative evidence or information so that
contact with the parent or putative father becomes unnecessary; or

(ii) withdraw the application for assistance or have the case closed;
or

(iii) have the good cause claim denied.

(2) Participation by the child support enforcement unit.

(i) Prior to making a final determination of good cause for refusing
to cooperate, the social services district worker or an appropriate
designee shall:

(a) afford the local child support enforcement unit the opportunity to
review and comment on the findings and basis for the proposed determi-
nation; and

(b) consider any recommendation fromm the child support enforcement
unit.

(ii) The worker or designee shall give the local child support
enforcement unit the opportunity to participate in any hearing that
results from an applicant's or recipient's appeal of any action of the
Department of Health under this subdivision.

(3) Notice to the local child support enforcement unit. The social
services district worker or an appropriate designee shall promptly
report to the local child support enforcement unit:

(i) all cases in which good cause has been claimed and a determination
is pending;

(ii) all cases in which there is a good cause for refusal to cooperate
and the basis for the determination and whether or not child support
enforcement may proceed without the participation of the caretaker relative; and

(iii) all cases in which it has been determined there is not good
cause for refusal to cooperate.

(4) Granting or continuation of assistance. MA shall not be denied,
delayed or discontinued pending a determination of good cause for
refusal to cooperate if the applicant or recipient has complied with the
requirement of this subdivision to furnish corroborative evidence and
information.

(5) Periodic review of good cause determination. The social services
district worker or an appropriate designee shall:

(i) periodically review, not less frequently than at each redetermi-
nation of eligibility, those cases in which the agency or an appropriate
designee has determined that good cause exists based on a circumstance
that is subject to change;

(ii) determine if circumstances have changed to the extent that good
cause no longer exists. If so, the worker or designee shall rescind the
findings; and

(iii) give prompt notification to the child support enforcement unit
of every change in determination of good cause, as required by subpara-
graphs (i) and (ii) of this paragraph.

(6) Recordkeeping. Social services districts shall maintain records of
the activities under this subdivision as prescribed by the Department of
Health.

(7) Enforcement without the caretaker's cooperation.

(i) If a determination of good cause is made on the basis of the
circumstances specified above, a determination shall also be made of
whether or not child support enforcement could proceed without risk to
the child or caretaker relative if the enforcement or collection activ-
ities did not involve their participation.

(ii) This determination shall be in writing, contain the agency's or
its designee's finding and basis for determination, and be entered into
the MA case record.

(iii) if the social services district worker or an appropriate desig-
nee excuses cooperation but determines that the child support enforce-
ment unit may proceed to establish paternity or enforce support, the
worker or designee shall notify the applicant or recipient to enable
such individual to withdraw his or her application for assistance or
have the case closed.

(iv) In the process of making a determination under this paragraph,
the social services district worker or an appropriate designee shall
afford the child support enforcement unity the opportunity to review and
comment on the findings and basis for the proposed determination, and
consider any recommendation from the child support enforcement unit.

(8) Final determination of good cause for refusal to cooperate.

(i) The social services district worker or an appropriate designee
will make the final determination that good cause does or does not
exist. Such determination shall:

(a) be in writing;

(b) contain the findings and basis for the determination; and

(c) be entered in the MA case record.

(ii) The determination shall be made within 30 days form the day the
good cause claim is made.

(iii) The social services district worker or an appropriate designee
may exceed the 30 day period when the case record documents that addi-
tional time is needed because the information required to verify the
claim cannot be obtained within 30 days or the claimant did not provide
corroborative evidence within 20 days.

(iv) If the social services district worker or an appropriate designee
determines good cause does not exist:

(a) the applicant or recipient will be so notified and afforded the
opportunity to cooperate, withdraw the application for assistance, or
have the case closed; and

(b) continued refusal to cooperate will result in sanctioning the
applicant or recipient.

(g) Applicants/recipients must assign to the State and the social
services district any rights that they or their dependent family members
included in the application have under any health insurance policy or
group health plan.

(h) An employed applicant/recipient who is eligible for MA without
having to reduce excess income in accordance with section 360-4.8 (c) of
this Part must enroll in any group health insurance plan offered by the
employer where no employee contribution is required. If an employee
contribution is required, such an applicant/recipient must enroll only
if the social services district decides to pay the premiums pursuant to
section 360-7.5(g) of this Part. The MA eligibility of only the
employed applicant/recipient will be affected by his/her failure to
follow the requirements of this subdivision.

(i) Applicants/recipients must cooperate with the State and the social
services district in identifying any third party who may be liable to
pay for medical care. The applicant/recipient must provide information
to assist the State and the social services district in pursuing any
such third party. Exceptions may be made if the applicant/recipient has
good cause for refusing to cooperate.

(j) Citizenship and immigration status. (1) Definitions. (i) Qualified immigrants.
The term qualified immigrant includes the following categories of aliens:

(a) refugees admitted under section 207 of the Immigration and Nationality Act;

(b) asylees granted asylum under section 208 of the Immigration and Nationality Act;

(c) aliens whose deportation was withheld under section 241(b)(3) or 243(h) of the Immigration and Nationality Act;

(d) Cuban and Haitian entrants (as defined in section 501(e) of the Refugee Education Assistance Act of 1980), including all Cuban or Haitian parolees;

(e) aliens admitted into the United States as Amerasian immigrants as described in section 402(a)(2)(A)(v) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. Section 1612(a)(2)(A)(v));

(f) aliens lawfully admitted for permanent residence in the United States;

(g) aliens paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act for a period of at least one year, except Cuban or Haitian parolees;

(h) aliens granted conditional entry into the United States under section 203(a)(7) of the Immigration and Nationality Act;

(i) battered spouses and dependents meeting the criteria of section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. Section 1641(c));

(j) aliens on active duty, other than active duty for training, in the United States Armed Forces or who are veterans who have received a discharge characterized as honorable and not on account of alienage, or the spouse, unremarried surviving spouse or unmarried dependent child of any such alien;

(k) Canadian born Native Americans;

(l) Native Americans belonging to a federally recognized tribe who were born outside the United States; and

(m) victims of a severe form of trafficking under section 107(b) of the Trafficking Victims Protection Act of 2000 (P.L. 106-386).

(ii) Permanently Residing Under Color of Law (PRUCOL). The term PRUCOL alien means an alien who is residing in the United States with the knowledge and permission or acquiescence of the federal immigration agency and whose departure from the U.S. such agency does not contemplate enforcing. An alien will be considered as one whose departure the federal immigration agency does not contemplate enforcing if, based on all the facts and circumstances in a particular case, it appears that the federal immigration agency is otherwise permitting the alien to reside in the United States indefinitely or it is the policy or practice of such agency not to enforce the departure of aliens in a particular category. The following categories of aliens are PRUCOL:

(a) aliens paroled into the United States pursuant to section 212(d)(5) of the Immigration and Nationality Act for less than one year;

(b) aliens residing in the United States pursuant to an Order of Supervision;

(c) deportable aliens residing in the United States pursuant to an indefinite stay of deportation;

(d) aliens residing in the United States pursuant to an indefinite voluntary departure;

(e) aliens on whose behalf an immediate relative petition has been approved, and members of their families covered by the petition, who are entitled to voluntary departure and whose departure the federal immigration agency does not contemplate enforcing;

(f) aliens who have filed an application for adjustment to lawful permanent resident status pursuant to section 245 of the Immigration and Nationality Act, whose application the federal immigration agency has accepted as properly filed or has granted, and whose departure the federal immigration agency does not contemplate enforcing;

(g) aliens granted stays of deportation by court order, statute or regulation or by individual determination of the federal immigration agency pursuant to section 243 of the Immigration and Nationality Act, whose departure the federal immigration agency does not contemplate enforcing;

(h) aliens granted voluntary departure status pursuant to section 242(b) of the Immigration and Nationality Act whose departure the federal immigration agency does not contemplate enforcing;

(i) aliens granted deferred action status;

(j) aliens who entered and have continuously resided in the United States since before January 1, 1972;

(k) aliens granted suspension of deportation pursuant to section 244 of the Immigration and Nationality Act whose departure the federal immigration agency does not contemplate enforcing; and

(l) any other alien living in the United States with the knowledge and permission or acquiescence of the federal immigration agency and whose departure such agency does not contemplate enforcing.

(iii) Emergency medical condition. The term emergency medical condition means a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in:

(a) placing the person’s health in serious jeopardy;

(b) serious impairment to bodily functions; or

(c) serious dysfunction of any bodily organ or part.

(2) Eligibility for Medical Assistance. (i) The following persons, if otherwise eligible, are eligible for medical assistance:

(a) citizens, qualified immigrants and PRUCOL aliens;

(b) any alien who, on August 4, 1997, resided in a residential health care facility licensed by the department or in a residential facility licensed, operated or funded by the office of mental health or the office of mental retardation and developmental disabilities, and was in receipt of a medical assistance authorization based on a finding that such alien was PRUCOL; and

(c) any alien who, on August 4, 1997, was diagnosed as having acquired immune deficiency syndrome, as defined in subdivision one of section two thousand seven hundred eighty of the public health law, and was in receipt of a medical assistance authorization based on a finding that such alien was PRUCOL.

(ii) Aliens other than those specified in subparagraph (i) of this paragraph, if otherwise eligible, are eligible for medical assistance only for care and services (not including care and services related to an organ transplant procedure) necessary for the treatment of an emergency medical condition. Nothing in this subparagraph shall be interpreted as affecting the eligibility for pre-natal care benefits for aliens otherwise eligible for such benefits.

(3) Other requirements. (i) Except as provided in subparagraph (ii) of this paragraph, an applicant for, or recipient of, medical assistance must provide:

(a) evidence of his or her citizenship or status as a qualified immigrant or PRUCOL alien; and

(b) a social security number or documentation that such person has applied for a social security number.

(ii) The requirements of subparagraph (i) of this paragraph do not apply to the following persons:

(a) aliens seeking medical assistance for the treatment of an emergency medical condition; and

(b) pregnant women for the duration of the pregnancy and the sixty day period that begins on the last day of the pregnancy and including, but not exceeding, the last day of the month in which the sixty day post-partum period ends.

(k) Applicants/recipients must be residents of New York State. The
applicant's/recipient's state of residence is responsible for providing
medical assistance. Residency requirements are listed in this subdivi-
sion. Exceptions to the residency requirements are found in section
360-3.6 of this Part.

(1) Placements in institutions by other states. (i) A person placed in
a New York State institution by another state, or by a public or private
organization contracting with the other state for such purposes, is a
resident of the state arranging or making the placement.

(ii) A person placed in an out-of-state institution by an agency of
New York State, or by a public or private organization contracting with
New York State for such purposes, is a resident of New York State.

(iii) A competent individual who leaves an institution in which he/she
has been placed by another state is a resident of the state where he/she
is physically located.

(2) Persons receiving State supplementary payments. Any person receiv-
ing a State supplementary payment under the SSI program is a resident of
New York State if the payment is made on behalf of New York State.

(3) Persons receiving title IV-E foster care maintenance payments.
Any person receiving foster care maintenance payments under title IV-E
of the Social Security Act and living in New York State is a resident of
the State, regardless of which state is making the payments.

(4) Persons on whose behalf a title IV-E adoption assistance agreement
is in effect. Any person on whose behalf an adoption assistance agree-
ment is in effect under title IV-E of the Social Security Act is a resi-
dent of New York State if he/she is living in the State. This provision
applies regardless of which state has the agreement in effect and
regardless of whether adoption assistance payments are provided under
the agreement or are being made pursuant to title IV-E.

(5) Persons age 21 and over. (i) Any person not residing in an insti-
tution is a resident of New York State if he/she is living in the State
and:

(a) intends to remain permanently or indefinitely; or
(b) is unable to state intent; or
(c) entered the State to take a job or to seek employment.
(ii) An institutionalized person who became unable to state intent
before age 21 is a resident of New York State if:

(a) the parents reside in separate states, and the parent applying for
MA on the person's behalf is a resident of the State or was a resident
of the State at the time of placement; or

(b) parental rights have been terminated, a legal guardian has been
appointed, and the legal guardian applying for MA on the person's behalf
is a resident of the State or was a resident of the State at the time of
placement; or

(c) the parent or legal guardian applying on the person's behalf is a
New York State resident and the person is institutionalized in New York
State; or

(d) the person has been abandoned by his/her parents, has no legal
guardian, is institutionalized in New York State, and the party applying
on the person's behalf is a State resident.

(iii) Any person institutionalized in New York State who becomes
unable to state intent at or after age 21 is a resident of New York
State unless another state made the placement.

(iv) Any other person institutionalized in New York State is a State
resident if he/she intends to remain in the State permanently or indefi-
nitely.

(6) Persons under age 21. (i) Any person who is married or emancipated
from his/her parents and who is capable of stating intent, is a State
resident if he/she is living in the State and intends to remain perma-
nently or indefinitely.

(ii) Any noninstitutionalized person who is living in the State and
whose MA eligibility is based on blindness or disability is a State
resident.

(iii) Any other noninstitutionalized person is a State resident if:

(a) the person is living in the State on other than a temporary basis;
or

(b) the person's caretaker, as defined by Federal and State law, is
living in the State, is not receiving assistance from another state, and
entered this State to take or seek employment.

(iv) Any institutionalized person who is neither married nor emanci-
pated is a State resident if:

(a) the parent applying for MA on the person's behalf is a State resi-
dent or was a State resident at the time of placement; or

(b) parental rights have been terminated, a legal guardian has been
appointed, and the legal guardian applying for MA on the person's behalf
is a resident of the State or was a State resident at the time of place-
ment; or

(c) the person has been abandoned by his/her parents, has no legal
guardian, is institutionalized in New York State, and the party applying
for MA on the person's behalf is a State resident.

(7) Prohibitions. (1) A person cannot be denied MA because he/she has
not resided in the State for a specified period.

(ii) A person cannot be denied MA because he/she does not reside in a
permanent dwelling or does not have a fixed home or mailing address.

(iii) An institutionalized person who meets the residency requirements
of this subdivision cannot be denied MA because he/she did not establish
residence in the State before entering the institution.

(iv) A person cannot be denied MA or have MA terminated because of a
temporary absence from the State if he/she intends to return when the
purpose of the absence is accomplished, unless another state has deter-
mined the person to be a resident of that state for medical assistance
purposes.

(8) Interstate agreements. Notwithstanding any inconsistent provisions
of this subdivision, the department may enter into interstate agree-
ments, consistent with Federal law and regulations, to set forth rules
and procedures to resolve cases of disputed residence. The application
of such rules and procedures cannot result in a person losing residence
in both states.

(l) Applicants/recipients whose MA identification cards must contain a photo
image, pursuant to the requirements of section 360-6.2(b) of this Part, must
submit to a photo imaging process in connection with the creation of such
identification cards.

(m) Applicants/recipients whose MA identification cards must contain a photo
image, pursuant to the requirements of section 360-6.2(b) of this Part, other
than applicants for or recipients of health care services under Title 11-D of
the Social Services Law, must establish their identities by means of finger
images in accordance with the automated finger imaging system described in Part
384 of this Title.

Doc Status: 
Complete
Effective Date: 
Wednesday, April 4, 2007

Section 360-3.3 - Who is eligible for MA.

360-3.3 Who is eligible for MA. Generally, an applicant is eligible for MA if he/she meets the conditions listed in section 360-3.2 of this Subpart and belongs to one of the groups listed below:

(a) Persons who are categorically needy. An applicant is categorically needy if:

(1) he/she is eligible for or receiving HR; or

(2) he/she is eligible for or receiving ADC; or

(3) he/she is eligible for or receiving SSI and/or State supplementary payments; or

(4) he/she is a child receiving foster care maintenance payments under title IV-E of the Social Security Act and living in the State;

(5) he/she is a child living in the State on whose behalf an adoption assistance agreement is in effect under title IV-E of the Social Security Act, whether or not adoption assistance payments are provided for under the agreement or are being made pursuant to title IV-E; or

(6) he/she is an adopted child under age 21 provided that:

(i) there is a legally executed adoption assistance agreement in place between an authorized agency and the adoptive parents (other than an adoption assistance agreement subject to the provisions of title IV-E of the Social Security Act);

(ii) the child has a special need for medical or rehabilitative care that would have precluded placement with adoptive parents unless MA were provided to the child; and

(iii) the child was in receipt of MA in the three-month period prior to the adoption agreement being entered into, or the child would have been eligible for MA during such period of only the child's own income and resources were considered in determining eligibility.

(b) Persons who are medically needy. An applicant/recipient is medically needy if his/her net available income and resources do not meet the cost of necessary medical care and services available under the MA program, as determined in accordance with Subpart 360-4 of this Part, and he/she is:

(2) a person who is certified blind or certified disabled;

(3) a person under 21 years of age, or under 22 years of age and receiving inpatient psychiatric services which he/she began receiving before reaching age 21;

(4) a pregnant woman;

(5) a person ineligible for ADC solely because his or her income and/or resources are above the amounts allowed for ADC eligibility. This category includes: parents or other relatives listed in section 369.1(b) of this Title who are living with and caring for a child under the age of 21 who is deprived of parental support; persons who otherwise would be eligible for a continuation of an ADC grant pursuant to section 369.3

(d) (1) of this Title;

(6) the spouse of a cash assistance recipient who is living with the recipient, who is essential to the recipient's welfare, and who needs are included in determining the amount of the recipient's cash payment;

(7) a federally nonparticipating (FNP) person who is a parent of a dependent child under 21 years of age and who is ineligible for public assistance solely because his/her income and/or resources are above the amounts allowed for public assistance eligibility, provided that the child is living with such parent or is temporarily absent from the parent's household. An FNP person does not meet the categorical eligibility requirements for ADC or SSI; or

(8) a person who resides in a department-approved private facility which is funded through voluntary contributions and which provides for all maintenance and personal needs, provided that such person has no income or resources or that such person's income and resources are applied toward the cost of maintenance in the facility. If such person is federally nonparticipating, he/she will be required to comply with the requirements of subdivision (5) of section 131 of the Social Services Law.

(c) Persons whose MA eligibility is extended. Certain persons will continue to receive MA benefits for a specified period of time after ceasing to be categorically needy or medically needy.

(1)(i) A family which becomes ineligible for ADC or HR will remain eligible for MA for an extended MA coverage period of six calendar months following the month of ADC or HR ineligibility if:

(a) the family became ineligible for ADC or HR on or after April 1, 1990;

(b) the family was eligible for ADC or HR in at least three of the six months immediately preceding the first month of ADC or HR ineligibility; and

(c) the family became ineligible for ADC or HR due to the caretaker relative's hours of employment or income from employment, or the loss of the $30 plus one-third of the remainder earned income disregard or the $30 earned income disregard, as provided in section 352.20 of this Title; and

(d) the family continues to have a dependent child.

(ii) When notifying a family of its ineligibility for ADC or HR for the reasons described in subparagraph (i)(c) of this paragraph, social services districts must give the family adequate notice of its rights to an extended MA coverage period under this paragraph, including notice of the reporting requirements for the additional extended MA coverage period under paragraph (2) of this subdivision and the circumstances described in subparagraph (iii) of this paragraph.

(iii) Social services districts also must give the families receiving MA under this paragraph adequate notice of the option for an additional extended MA coverage period in both the third and sixth months of the extended MA coverage period.

(iv) Upon adequate notice to the family, the extended MA coverage period under this paragraph must be terminated at the end of:

(a) the first month in which the family ceases to include a dependent child; or

(b) the month in which the department determines that a family member fraudulently received ADC or HR in any of the six months prior to the extended MA coverage period, except that the termination of coverage will apply only to such family member.

(v) With respect to a child who would cease to receive MA as a result of a termination of coverage pursuant to clause (iv) (a) of this paragraph, the child's coverage may not be terminated until the social services district has determined that the child is not otherwise eligible for MA.

(2) (i) A family which received MA for the full six-month extended MA coverage period provided for under paragraph (1) of this subdivision may be eligible for an additional extended MA coverage period of six calendar months. In order to be eligible for the additional extended MA coverage period, the family must have submitted the first report required under subparagraph (ii) of this paragraph, or have good cause for failing to meet the reporting requirement.

(ii) A family must report to the social services district the family's gross monthly earnings and the family's costs for child care, which were necessary for the employment of the caretaker relative. These reports must include earnings and costs for each of the three preceding months. The reports must be submitted no later than the 21st day of the fourth month of the extended MA coverage period and the first and fourth months of the additional extended MA coverage period.

(iii) Social services districts must give families receiving MA coverage under this paragraph adequate notice of the reporting requirements of subparagraph (ii) of this paragraph in the third month of the additional extended MA coverage period.

(iv) Upon adequate notice to the family, the additional extended MA coverage period under this paragraph must be terminated at the end of:

(a) the first month in which the family ceases to include a dependent child;

(b) the month in which the department determines that a family member fraudulently received ADC or HR in any of the six months prior to the extended MA coverage period, except that the termination of coverage will apply only to such family member;

(c) the first or fourth month of the additional extended MA coverage period if the family fails, without good cause, to meet the reporting requirements set forth in subparagraph (ii) of this paragraph in either the first or fourth month of the additional extended MA coverage period;

(d) the first or fourth month of the additional extended MA coverage period if the caretaker relative had no earnings in one or more of the previous three months, unless the lack of earnings was due to an involuntary loss of employment, illness, or other good cause; or

(e) the first or fourth month of the additional extended MA coverage period if the family's average gross monthly earnings during the previous three months, less the cost of child care necessary for the employment of the caretaker relative, exceed 185 percent of the Federal income official poverty line applicable to the family's size.

(v) With respect to a child who would cease to receive MA as a result of a termination of coverage pursuant to clause (iv) (a) of this paragraph, the child's coverage may not be terminated until the social services district has determined that the child is not otherwise eligible for MA.

(3) A household which become ineligible for ADC due to the collection or increased collection of child or spousal support will remain eligible for MA for four calendar months beginning with the first month of ADC ineligibility if the family was eligible for ADC in at least three of the six months immediately preceding the first month of ADC ineligibility.

(5) A woman receiving MA on any day of her pregnancy remains eligible for MA for at least 60 days beginning on the last day of her pregnancy. Her eligibility will continue until the last day of the month in which the 60th day occurs, regardless of any change in her household's income.

(6) A child whose mother was eligible for and receiving MA on the date of the child's birth will be eligible for MA for up to one year from the date of birth so long as:

(i) the mother remains or, if pregnant, would remain eligible for MA; and

(ii) the child is a member of the woman's household.

(7) A person who become ineligible for SSI because he/she is no longer certified blind or certified disabled will remain eligible for MA for two months following the month in which the blindness or disability ends, provided the person continues to meet the financial eligibility requirements in Subpart 360-4 of this Part.

(8) Any certified blind or certified disabled person who is a qualified severely impaired individual will continue to be eligible for MA despite earnings that demonstrate his or her ability to engage in substantial gainful activity under the SSI program. A person is a qualified severely impaired individual if:

(i) he/she was eligible for MA and received SSI benefits, State supplementary payments, or benefits under section 1619(a) of the Social Security Act in the month preceding the first month in which the provision of this paragraph is applied; and

(ii) the Social Security Administration has determined that:

(a) the person continues to be blind or to have a disabling physical or mental impairment;

(b) the person continues to meet all other requirements for SSI eligibility except for earnings;

(c) the lack of MA coverage would seriously inhibit the person's ability to continue or to obtain employment; and

(d) the person's earnings are insufficient to provide a reasonable equivalent of the SSI, MA, and publicly funded attendant care benefits that would be available to the person if he/she were not employed.

(9) A person 60 years of age or older who applies for and receives early widow's or widower's insurance benefits under section 202(e) or

(f) of the Social Security Act, or receives other benefits under section 202 of such act but is eligible for widow's or widower's insurance benefits, and who becomes ineligible for SSI or State supplementary payments as a result of receiving such benefits, will remain eligible for MA so long as:

(i) he/she would be eligible for SSI or State supplementary payment if he/she were not receiving such benefits; and

(ii) he/she is not entitled to Medicare part A hospital insurance benefits.

(10) A person who was receiving both SSI and Social Security benefits at any time after April 1977, and who subsequently became ineligible for SSI will be eligible for MA if:

(i) the person is currently eligible for and receiving social security benefits; and

(ii) the person would be eligible for SSI if social security cost-ofliving increases received by the person and his/her spouse since the last month in which the person received both social security and SSI benefits were not counted as income.

(11) A person who was eligible for MA in December 1973, as a blind or disabled individual will remain eligible for MA so long as:

(i) the person still meets the December 1973 criteria for blindness or disability; and

(ii) the person meets all other current requirements for MA eligibility.

(12) A person eligible for MA in December 1973 as an essential spouse of a recipient of aid to the aged, blind, or disabled (AABD) remains eligible for MA so long as:

(i) the aged, blind or disabled individual still meets the December 1973 eligibility requirements for AABD; and

(ii) the person remains the spouse of the aged, blind or disabled individual.

(13) A person who was an inpatient in an institution participating in the MA program for all or any part of December, 1973 and who:

(i) would have been eligible for AABD except for being such an inpatient; or

(ii) was considered to be eligible for AABD, for the purpose of determining MA eligibility, on the basis of needing care in such an institution, remains eligible for MA so long as he/she continues to be in need of inpatient care.

(14) A person who was entitled to social security benefits and was eligible for or receiving cash assistance under ADC or AABD in August, 1972 will have his/her MA eligibility determined without regard to the October, 1972 social security increase. This provision also applies to a person who would have been eligible for ADC or AABD during August 1972 if he/she had not been in a medical institution or intermediate care facility.

(15) A person age 18 or older who was receiving SSI or State supplementary payments on the basis of blindness or disability which began before he or she reached the age of 22, and who on or after July 1, 1987, lost eligibility for SSI benefits because he or she became entitled to child's insurance benefits under 42 U.S.C. 402(d) (also known as Disabled Adult Child's benefits) or to an increase in the amount of such benefits, remains eligible for MA so long as he or she would be eligible for SSI benefits in the absence of such child's insurance benefits or the increase in such benefits.

(16) An infant who is receiving medically necessary in-patient care and services on his or her first birthday and who is eligible for MA because his or her household's income does not exceed 185 percent of the applicable Federal poverty line set forth in section 360-4.7 (b) of this Part will remain eligible for such in-patient care and services until the end of his or her in-patient stay.

(17) A child who is receiving medically necessary in-patient care and services on his or her sixth birthday and who is eligible for MA because his or her household's income does not exceed 133 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Part will remain eligible for such in-patient care and services until the end of his or her in-patient stay.

(18) A child who is receiving medically necessary in-patient care and services on his or her 19th birthday and who is eligible for MA because his or her household's income does not exceed 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of the Part will remain eligible for such in-patient care and services until the end of his or her in-patient stay.

 

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Section 360-3.4 - Who is excluded from receiving MA.

360-3.4 Who is excluded from receiving MA. (a) A person may not receive MA if he/she is:

(1) a resident of a public institution, as defined in section 360-1.4(1) of this Part unless the public institution is:

(i) an emergency shelter for the homeless, in which case MA is available:

(a) to persons eligible for or receiving HR; and

(b) to medically needy aged, certified blind or certified disabled applicants/recipients for up to six months in any period of nine consecutive months;

(ii) a home for adults operated by a social services district; or

(iii) a residential care center for adults operated by or certified by the Office of Mental Health;

(2) a patient in an institution for mental diseases unless he/she is:

(1) 65 years of age or older; or

(ii) under 22 years of age and receiving inpatient psychiatric services which began before he/she reached age 21; or

(3) a person who is ineligible for public assistance because he/she refused to comply with work requirements, including persons described in sections 360-3.3(a) (1) and 360-3.3(b) (7) of this Subpart.

(b) A person on conditional release or convalescent leave from an institution for mental diseases is not considered a patient in that institution, unless he/she is under the age of 22 and was receiving inpatient psychiatric services. In that case, he/she will be considered a patient until he/she is unconditionally released or reaches the age of 22, whichever is earlier.

(c) When a social services district, as an agent of the Department, receives from the State Department of Correctional Services an MA application on behalf of a prison inmate who meets the conditions for medical parole under Section 259-r of the Executive Law, the social services district must determine the inmate's eligibility for MA prior to the inmate's release. However, the inmate will not be eligible to receive MA until after his or her release from prison.

 

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Section 360-3.5 - MA for State residents outside their district of residence.

360-3.5 MA for State residents outside their district of residence. State residents who are outside their district of residence at the time of application or after eligibility is established will be provided MA under certain circumstances. The applicant/recipient must be in the United States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam or Canada. MA will be provided to the same extent as it is to eligible persons within the district if:

(a) residents of the district customarily use medical facilities in the other district, state or area; or

(b) there are limited medical services available in the district of residence and the social services district gives prior approval; or

(c) emergency medical attention is needed as a result of accident or sudden illness.

 

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Section 360-3.6 - Eligibility of persons temporarily in the State.

360-3.6 Eligibility of persons temporarily in the State. (a) A person who is not a State resident but is temporarily in the State and requires immediate medical care not otherwise available, will be eligible for MA if:

(1) the person did not enter the State solely to obtain such medical care; and

(2) the person applies for MA and meets the eligibility requirements except for State residence, United States citizenship, or status as an alien permanently residing in the United States under color of law.

(b) MA will cover outstanding medical bills allowed under the MA program after all medical assistance available from the person's state of residence has been used.

(c) District responsibilities. When a person temporarily in this State applies for MA, the social services district must assist the appropriate social services agency in the person's state of residence in the investigation and the arrangements for care, providing the person is eligible for medical assistance in the state of residence.

 

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Section 360-3.7 - Presumptive eligibility.

360-3.7 Presumptive eligibility. (a) Any person applying for MA will be presumed eligible for such assistance for a period of up to 60 days from the date of transfer from a general hospital to a certified home health agency or long term home health care program if:

(1) the applicant is receiving acute care in such hospital;

(2) a physician certifies that the applicant no longer requires acute hospital care, but still requires medical care which can be provided by a certified home health agency or a long term home health care program;

(3) the applicant or his/her representative states that the applicant does not have insurance coverage for the required medical care and that such care cannot be afforded;

(4) it reasonably appears that the applicant is eligible for MA; and

(5) it reasonably appears that the amount expended by the department and the social services district for care and services provided by a certified home health agency or long term home health care program during the period of presumed eligibility would be less than the amount which would be expended for continued acute hospital care.

(b) An applicant determined to be presumptively eligible for MA under subdivision (a) of this section will not be eligible, during the period of presumptive eligibility, for MA coverage of inpatient care in a hospital or residential health care facility, hospital emergency room treatment, and hospital-based clinic care. If the applicant is subsequently determined to be eligible for MA, he/she will be eligible for all care and services available under the MA program retroactively to the effective date of presumptive eligibility. If a presumptively eligible applicant is subsequently determined to be ineligible for MA, any sums expended for such assistance during the period of presumptive eligibility will be recouped from the applicant. The social services district will have the authority to recoup such sums on behalf of the department.

(c) A period of presumptive eligibility pursuant to subdivision (a) of this section will end automatically after 60 days from the date of transfer from the general hospital or upon a determination by the social services district as to the applicant's eligibility for MA, whichever occurs first. If a presumptively eligible applicant is subsequently determined to be ineligible for MA, the applicant may request a fair hearing pursuant to Part 358 of this Title to dispute the denial of MA but the period of presumptive eligibility will not be extended by such request.

(d) Presumptive eligibility for pregnant women.

(1) A pregnant woman will be presumed eligible to receive the MA care, services and supplies listed in paragraph (9) of this subdivision when a qualified provider determines, on the basis of preliminary information, that the pregnant woman's family income does not exceed 185 percent of the applicable poverty line listed in section 360-4.7 (b) of this Part.

(2) For purposes of this subdivision, the pregnant woman's family income will be determined according to section 360-4.6 of this Part relating to financial eligibility for MA. The resources of the pregnant woman's family will not be considered in determining the pregnant woman's presumptive eligibility for MA.

(3) For purposes of this subdivision, a pregnant woman's family includes the pregnant woman, any legally responsible relatives and any legally dependent relatives with whom she resides.

(4) As used in this subdivision, the term "qualified provider" means a provider who:

(i) is eligible to receive payment under the MA program;

(ii) provides one or more of the following types of services:

(a) outpatient hospital services;

(b) rural health clinic services; or

(c) clinic services furnished by or under the direction of a physician, without regard to whether the clinic itself is administered by a physician;

(iii) has been found by the department to be capable of making presumptive eligibility determinations based on family income; and

(iv) meets at least one of the following additional criteria:

(a) receives funds under the federal Migrant Health Centers or Community Health Centers programs pursuant to the federal Public Health Service Act;

(b) receives funds under the federal Maternal and Child Health Services Block Grant programs pursuant to Title V of the federal Social Security Act;

(c) participates in the program established under the federal Special Supplemental Food Program for Women, Infants, and Children pursuant to the federal Child Nutrition Act of 1966;

(d) participates in the program established under the federal Commodity Supplemental Food Program pursuant to the federal Agriculture and Consumer Protection Act of 1973; or

(e) participates in the New York State Department of Health's Prenatal Care Assistance Program (PCAP), established pursuant to Article 25 of the Public Health Law (PHL).

(5) A pregnant woman who has been determined presumptively eligible for MA must submit an MA application to the social services district in which she resides by the lase day of the month following the month in which a qualified provider determined her to be presumptively eligible.

(6) A qualified provider that has determined a pregnant woman to be presumptively eligible for MA must:

(i) on the day the qualified provider determines the pregnant woman to be presumptively eligible, inform her that she must submit an MA application to the social services district in which she resides by the last day of the following month in order to continue her presumptive eligibility until the day the social services district determines her eligibility;

(ii) assist her to complete the MA application and submit the application on her behalf;

(iii) within five business days after the day the qualified provider determines the pregnant woman to be presumptively eligible, notify the social services district in which the pregnant woman resides of its presumptive eligibility determination on forms the department develops or approves; and

(iv) if the qualified provider participates in PCAP, offer to represent the presumptively eligible pregnant woman during the remainder of the MA eligibility process, including acting as her representative at the personal interview the social services district conducts pursuant to section 360-2.2 of this Part.

(7) The period of presumptive eligibility for MA begins on the day a qualified provider determines the pregnant woman to be presumptively eligible. If the pregnant woman submits an MA application to the social services district in which she resides by the last day of the following month, the period of presumptive eligibility continues through the day the social services district determines whether the pregnant woman is eligible for MA; if the pregnant woman fails to submit such an application, the period of presumptive eligibility continues through the last day of the following month.

(8) A pregnant woman is eligible for only one period of presumptive eligibility during each pregnancy.

(9) A presumptively eligible pregnant woman is eligible for medical care, services and supplies as follows:

(i) a presumptively eligible pregnant woman whose family income does not exceed 100 percent of the applicable poverty line, as listed in section 360-4.7 (b) of this Part, is eligible for all medical care, services and supplies available under the MA program, excluding inpatient and institutional long-term care; and

(ii) a presumptively eligible pregnant woman whose family income exceeds 100 percent of the applicable poverty line but does not exceed 185 percent of such line, as listed in section 360-4.7 (b) of this Part, is eligible for comprehensive prenatal care services available under PCAP, as described in section 2522 of the Public Health Law, excluding inpatient care.

(10) If a presumptively eligible pregnant woman is subsequently determined to be ineligible for MA, she may request a fair hearing pursuant to Part 358 of this Title to dispute the denial of MA, but her presumptive eligibility period will not be extended by such request.

(e) Presumptive eligibility for coverage of family planning benefit program (FPBP) services.

(1) An individual will be presumed eligible to receive the MA care, services and supplies listed in paragraph (8) of this subdivision when a qualified provider determines, on the basis of preliminary information, that the individual's family income does not exceed 200 percent of the Federal poverty line applicable to a family of the same size.

(2) For purposes of this subdivision, the individual's family income will be determined according to section 360-4.6 of this Part relating to financial eligibility for MA. The resources of the individual's family will not be considered in determining the individual's presumptive eligibility for coverage of FPBP services.

(3) For purposes of this subdivision, an individual's family includes the individual, any legally responsible relatives and any legally dependent relatives with whom he or she resides. In determining eligibility for children under 21, parental income is disregarded when the child requests confidentiality, has good cause not to provide or is otherwise unable to obtain parental income information.

(4) As used in this subdivision, the term qualified provider means a provider who:

(i) is eligible to receive payment under the MA program;

(ii) provides family planning services, treatment and supplies; and

(iii) has been found by the department to be capable of making presumptive eligibility determinations based on family income.

(5) An individual who has been determined presumptively eligible for coverage of FPBP services must submit a FPBP application to the social services district in which he or she resides, or to the department or its agent, by the last day of the month following the month in which a qualified provider determined him or her to be presumptively eligible.

(6) A qualified provider that has determined an individual to be presumptively eligible for coverage of FPBP services must:

(i) on the day the qualified provider determines the individual to be presumptively eligible, inform the individual that a FPBP application must be submitted to the social services district in which he or she resides, or to the department or its agent, by the last day of the following month in order to continue presumptive eligibility until the day his or her FPBP eligibility is determined;

(ii) assist the individual to complete the FPBP application and submit the application on his or her behalf; and

(iii) within five business days after the day the qualified provider determines the individual to be presumptively eligible, notify the social services district in which the individual resides, or the department or its agent, of its presumptive eligibility determination on forms the department develops or approves.

(7) The period of presumptive eligibility for coverage of FPBP services begins on the day a qualified provider determines the individual to be presumptively eligible. If the individual submits a FPBP application to the social services district in which he or she resides, or to the department or its agent, by the last day of the following month, the period of presumptive eligibility continues through the day the individual's eligibility for FPBP is determined; if the individual fails to submit such an application, the period of presumptive eligibility continues through the last day of the following month.

(8) An individual found presumptively eligible pursuant to this subdivision is eligible for coverage of the following medically necessary FPBP services and appropriate transportation to obtain such services:

(i) hospital based and free standing clinics;

(ii) county health department clinics;

(iii) federally qualified health centers or rural health centers;

(iv) obstetricians and gynecologists;

(v) family practice physicians,

(vi) licensed midwives, nurse practitioners; and

(vii) family planning related services from pharmacies and laboratories.

(9) If a presumptively eligible individual is subsequently determined to be ineligible for FPBP, he or she may request a fair hearing pursuant to Part 358 of this Title to dispute the denial of FPBP, but the presumptive eligibility period will not be extended by such request.

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SubPart 360-4 - FINANCIAL ELIGIBILITY

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Section 360-4.1 - Introduction.

Section 360-4.1 Introduction. (a) To be eligible for MA under section 360-3.3(b) of this Part as a medically needy person, or to have MA eligibility extended under some provisions of section 360-3.3(c) of this Part, a person must meet certain financial requirements. A person who meets these requirements is financially eligible for MA. This Subpart explains procedures and principles used to determine financial eligibility.

(b) How the process works. (1) Except as provided in paragraph (2) of this subdivision, financial eligibility will be determined as follows:

(i) The size of the applicant's/recipient's MA household will be determined.

(ii) All income and resources available to the applicant/recipient during the period for which eligibility is being determined will be identified.

(iii) Certain amounts and types of income and resources will be disregarded. The remainder is the applicant's/recipient's net available income and resources.

(iv) The applicant's/recipient's net available income and resources will be compared to the eligibility standards for his/her MA household size. The applicant/recipient is financially eligible if the amounts of his/her net available income and resources do not exceed the appropriate standards. A financially eligible applicant who also meets all other eligibility requirements will be eligible to receive MA.

(v) An applicant whose net available resources are above the resource standards will be ineligible for MA until he/she incurs medical expenses equal to or greater than the excess resources.

(vi) Generally, an applicant whose net available income is above the income standard for his/her MA household size will be ineligible for MA until he/she incurs medical expenses equal to or greater than the excess income.

(2) For a pregnant woman, an infant younger than one year of age, a child at least one year of age but younger than six years of age whose household income does not exceed 133 percent of the applicable Federal poverty line set forth in section 360-4.7(b) of this Subpart, or a child born after September 30, 1983 who is at least six years of age but younger than 19 years of age and whose household income does not exceed 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart, financial eligibility will be determined as follows:

(i) The size of the applicant's/recipient's MA household will be determined.

(ii) All income available to the applicant/recipient during the period for which eligibility is being determined will be identified. All resources available to the applicant's/recipient's MA household are exempt from consideration.

(iii) Certain amounts and types of income will be disregarded in accordance with the provisions of section 360-4.6 of this Subpart. The remainder is the applicant's/recipient's net available income.

(iv) The applicant's/recipient's net available income will be compared to the eligibility standards or poverty lines for his/her MA household size. The applicant/recipient is financially eligible if the amounts of his/her net available income do not exceed the applicable eligibility standards or poverty lines. A financially eligible applicant who also meets all other eligibility requirements will be eligible to receive MA.

(c) This Subpart does not set forth the procedure for calculating the HR eligibility of persons whose MA eligibility depends on their being eligible for HR. As more fully explained in section 360-2.2(d)(2) of this Part, the HR eligibility of such persons generally will be determined according to Parts 352 and 370 of this Title.

 

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Section 360-4.2 - Size of MA household.

360-4.2 Size of MA household. (a) For needy individuals under 21, pregnant women, persons ineligible for ADC solely because their incomes and resources exceed ADC eligibility standards, and parents described in section 360-3.3(b) of this Part, an MA household is all MA applicants/recipients who live together in a single dwelling who apply for or receive MA as a unit, and any legally responsible relative who does not receive HR, ADC, or SSI and resides with an applicant/recipient. Any person who receives HR, ADC, or SSI will not be included as a member of an MA household, and the income and resources of such a person will not be considered when social services districts determine the MA eligibility of the applicant(s)/recipient(s).

(b) For adults who are aged, certified blind or certified disabled, an MA household is the aged, blind or disabled person and his or her spouse who lives with him or her if the spouse is: (i) also aged, certified blind or certified disabled, or (ii) has remaining income after allocation which is equal to or greater than the difference between the medically needy income standard for one, and the medically needy income standard for two. For other aged, certified blind or certified disabled adults who live with their spouses, an MA household consists of one person for income purposes, but consists of two persons for resource purposes. For all other aged, certified disabled, or certified blind applicant(s)/recipient(s), an MA household consists of one person.

(c) Special rules. (1) An MA household which contains a pregnant woman will be increased by one if the pregnancy is medically verified, except for applicant(s)/recipient(s) whose eligibility is being determined under the budgeting methodology used for aged, certified blind and certified disabled individuals. The increase will begin three months prior to the month of application or on the date of conception, whichever is later.

(2) A household member who is temporarily absent, as defined in section 360-1.4(p) of this Part, will continue to be included in the household.

 

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Section 360-4.3 - Available income.

Sec. 360-4.3 Available income. (a) Available income of an MA applicant/recipient will be determined as follows:

(1) All earned and unearned income received during the month will be considered. In determining the amount of earned and unearned income, allowable business expenses will be deducted, as described in subdivisions (c) and (d) of this section.

(2) Certain types of in-kind income will be deducted as described in subdivision (e) of this section.

(3) Income deemed available from legally responsible relatives will be added, as described in subdivision (f) of this section.

(4) Income allocated to dependent family members will be deducted. The amount remaining after the calculations in paragraphs (1) through (4) of this subdivision are made, is the applicant's/recipient's available income.

(b) Types of income. (1) Income means any payment from any source. It includes payments of money, goods, or services. It includes payments made on a one-time basis and on a recurring basis. It includes both earned and unearned income. Income received by an MA applicant/recipient is counted in the month in which it is received when determining MA eligibility. Resources, however, may be retained from month to month up to the levels exempted in section 360-4.7(a) of this Subpart.

(2) Earned income is income received as a result of working. Earned income includes, but is not limited to, wages, salaries, tips, commissions, bonuses and income from self-employment or a small business.

(3) Unearned income is income that is not received as compensation for work performed. Unearned income includes, but is not limited to, pensions, benefits, dividends, interest, and insurance compensation.

(4) In-kind income is income received in goods or services rather than in money.

In-kind income can be earned or unearned.

(c) Income from self-employment or small business. Income from a person's self-employment or from a small business owned and operated by the person, after allowable business expenses are deducted, is considered available earned income. The following allowable business expenses may generally be deducted:

(i) rental of quarters and equipment;

(2) salaries and fringe benefits of employees;

(3) cost of goods for resale;

(4) business taxes, licenses and permits;

(5) cost of tools, supplies and raw materials;

(6) insurance for the business;

(7) lights, heat, water, sewage and telephone charges;

(8) advertising and travel;

(9) taxes and carrying charges on any property used in the business

(other than payments on the principal of a mortgage);

(10) for aged, certified blind, or certified disabled applicants/recipients, depreciation costs for buildings, equipment and materials necessary for and directly related to the operation of the business; and

(11) any other expense necessary for and directly related to the operation of the business.

(d) Income from rental of property. (1) Income received from the rental of a person's real or personal property, after allowable business expenses are deducted, is considered available income of the person. For persons under 21 years of age, pregnant women, persons ineligible for ADC solely because their income and/or resources are above the amounts allowed for ADC eligibility, and parents described in section 360-3.3(b)(7) of this Part, such income will be considered earned income. For persons 65 years of age or older, certified blind, or certified disabled, such income will be considered unearned income. The following business expenses are deductible:

(i) property, school, water and sewer taxes;

(ii) the cost of utilities if they are included in the rent;

(iii) interest payments on mortgages for the property (but not payments on the principal of the mortgage);

(iv) the cost of essential repairs on the property (but not the cost of improvements to the property);

(v) wages paid to employees for maintaining the property; and

(vi) any other expenses necessary for the maintenance of the property.

(2) A person renting out a portion of his/her homestead, as defined in section 3601.4(f) of this Part, may deduct the business expenses listed in paragraph (1) of this subdivision to the extent that they are attributable to the rented portion of the property.

(3) When a person lives in income-producing property that is not a homestead, a reasonable rental allowance for the portion occupied by the person must be added to the total rental income before deducting allowable business expenses.

(e) In-kind income. (1) Earned or unearned in-kind income received from legally responsible relatives living outside the MA household is considered available income pursuant to subdivision (f) of this section. In-kind income received from anyone other than a legally responsible relative is considered available income only if it is earned income. Gifts and one-time contributions are not considered available income, regardless of the source; however, they can be counted against the resource standard.

(2) The value of in-kind income will be determined based on the current market value of the goods or services received. The current market value is the amount that would be received if the goods or services were sold on the open market in the applicant's/recipient's local area. However, the value of housing provided as in-kind income will be the current market value of the housing or the social services district's maximum shelter allowance, whichever is less.

(f) Legally responsible relatives. (1) This paragraph explains when the income and resources of a legally responsible relative is considered available to an MA applicant/recipient. Legally responsible relative is defined in section 360-1.4(h).

(i) Legally responsible relative living with an MA applicant/recipient who is not an institutionalized spouse as defined in section 360-4.10 of this Subpart. A portion of the legally responsible relative's income and resources, if he/she is of sufficient financial ability, will be considered available to the MA applicant/recipient. With respect to MA applicants/recipients who are 65 years of age or older, certified blind, or certified disabled, the amount of a legally responsible relative's income, if any, to be deemed available to the applicant/recipient will be determined in accordance with federal supplemental security income program regulations providing for the allocation of an amount of such relative's income to meet the needs of certain family members living with the applicant/recipient. The applicant/recipient will not be denied MA if the legally responsible relative refuses or fails to contribute toward the applicant's/recipient's medical support. However, the furnishing of MA will create an implied contract with the legally responsible relative and the cost of any MA provided may be recovered from such relative by the social services district pursuant to sections 101 and 366(3) (a) of the Social Services Law.

(ii) Legally responsible relative living apart from a non-institutionalized MA applicant/recipient. The legally responsible relative, if of sufficient financial ability, will be asked to contribute a portion of his/her income and resources to the MA applicant/recipient. Regardless of the amount of any requested contribution, only the amount that the legally responsible relative actually contributes to the non-institutionalized MA applicant/recipient will be considered available when determining MA eligibility. However, the social services district may seek to recover the cost of any MA provided from the legally responsible relative pursuant to sections 101 and 366 (3) (a) of the Social Services Law.

(iii) Spouses living apart due to institutionalization of one spouse. The ability of the community spouse to contribute income to the institutionalized spouse's cost of care will be determined in accordance with section 360-4.10(b) of this Subpart. The availability of the community spouse's resources will be determined in accordance with section 360-4.10(c) of this Subpart.

(iv) Parents of a child under the age of 21 who is certified blind or certified disabled and who is expected to be living separately from the parental household for 30 days or more, will not be requested to make their income and resources available to meet the cost of the child's necessary care or assistance.

(2) (i) The social services district must request a legally responsible relative, other than a community spouse as defined in section 360-4.10 of this Subpart, to contribute any excess resources toward the support of the MA applicant/recipient.

(ii) In determining the amount of contribution to be requested, legally responsible relatives who are not aged, certified blind, or certified disabled will be allowed the resource disregard in section 360-4.6 (b)

(1) of this Subpart and the standard resource exemptions listed in section 360-4.7(a) of this Subpart. Legally responsible relatives who are aged, certified blind, or certified disabled will be allowed the resource disregards in section 360-4.6(b) of this Subpart and the standard resource exemptions listed in section 360-4.7(a) of this Subpart.

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Effective Date: 
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Section 360-4.4 - Available resources.

360-4.4 Available resources. (a)Resources means property of all kinds, including real and personal property. It includes both tangible and intangible property.

(b) An applicant's/recipient's available resources include:

(1) all resources in the control of the applicant/recipient. It also includes any resources in the control of anyone acting on the applicant's/recipient's behalf such as a guardian, conservator, representative, or committee;

(2) certain resources transferred for less than fair market value, as explained in subdivision (c) of this section;

(3) all or part of the equity value of certain income-producing property, as explained in subdivision (d) of this section;

(4) certain resources of legally responsible relatives, as explained in subdivision 360-4.3(f) of this Subpart; and

(5) certain resources of an MA-qualifying trust, as explained in subdivision 360-4.5 of this Subpart.

(c) Transfer of assets.

(1) Transfers made by an applicant/recipient on or after October 1, 1989 and prior to September 1, 1991; and transfers made by an applicant/recipient or his/her spouse on or after September 1, 1991.

(i) General rule. Any transfer of a resource for less than fair market value made within or after the 30-month period immediately preceding the date a person becomes an institutionalized person, or the date an institutionalized person applies for MA, whichever is later, shall be presumed to have been made for the purpose of qualifying for nursing care and related services in a nursing facility; a level of care provided in a hospital which is equivalent to the level of care provided in a nursing facility; or care, services, or supplies furnished pursuant to a waiver under section 1915(c) of the Federal Social Security Act. Such a transfer shall result in a period of ineligibility for these services, as explained in subparagraph (iii) of this paragraph. For purposes of this paragraph, an institutionalized person means an inpatient in a nursing facility, an inpatient in a medical facility who is receiving a level of care provided in a nursing facility, or a person receiving care, services, or supplies pursuant to a waiver under section 1915 (c) of the Federal Social Security Act.

(ii) Exceptions. A person will not be ineligible for MA as a result of a transfer described in subparagraph (i) of this paragraph if:

(a) the resource transferred was a disregarded or exempt resource under sections 360-4.4(d), 360-4.6(b), and 360-4.7(a)(2)-(4) of this Subpart;

(b) the resource transferred was a homestead, as defined in subdivision 360-1.4(f) of this Part, and title to the homestead was transferred to:

(1) the spouse of such person; or

(2) a child of such person who is certified blind, certified permanently and totally disabled or under the age of 21; or

(3) a sibling of such person who has an equity interest in such home and who was residing in such home for a period of at least one year immediately before the date the period becomes institutionalized; or

(4) 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 the person becomes institutionalized, and who provided care to such person which permitted such person to reside at home rather than in an institution or facility; or

(c)(1) the resource was transferred by the applicant/recipient on or after October 1, 1989 and prior to September 1, 1991, and the transfer was:

(i) to or for the sole benefit of the community spouse, as defined in subdivision 360-4.10(a) of this Subpart; or

(ii) to the applicant's/recipient's child who is certified blind or certified permanently and totally disabled; or

(iii) to or for the sole benefit of the applicant's/recipient's spouse (other than a community spouse), provided such spouse does not transfer such resource to another person other than the applicant/recipient for less than fair market value within the period provided for by subparagraph (iii) hereof; or

(2) the resource was transferred by the applicant/recipient or his/her spouse on or after September 1, 1991, and the transfer was:

(i) between spouses or to another for the sole benefit of the person's spouse; or

(ii) to the person's child who is certified blind or certified permanently and totally disabled; or

(d) (1) a satisfactory showing is made that:

(i) the person or the person's spouse intended to dispose of the resource either at fair market value, or for other valuable consideration; or

(ii) the resource was transferred exclusively for a purpose other than to qualify: for nursing care and related services in a nursing facility; a level of care provided in a hospital which is equivalent to the level of care provided in a nursing facility; or care, services, or supplies furnished pursuant to a waiver under section 1915(c) of the Federal Social Security Act; or

(2) in the absence of a satisfactory showing under subclause (1) of this clause, it is determined that the denial of eligibility will result in an undue hardship. Denial of eligibility will result in an undue hardship if:

(i) the institutionalized person is otherwise eligible for MA;

(ii) the institutionalized person is unable to obtain appropriate medical care without the provision of MA; and

(iii) despite his/her best efforts, the institutionalized person or the person's spouse is unable to have the transferred resource returned or to receive fair market value for the resource. Best efforts include cooperating, as deemed appropriate by the commissioner of the social services district, in the pursuit of the return of such resource.

(iii) Period of ineligibility. (a) Any transfer made under this paragraph will cause the applicant/recipient to be ineligible for: nursing facility services; for a level of care equivalent to that of nursing facility services provided in a hospital; and for care, services, or supplies provided pursuant to a waiver under section 1915(c) of the Federal Social Security Act. Such person will remain ineligible for such services for the lesser of:

(1) 30 months from the date of transfer; or

(2) a period equal to the uncompensated value of the transferred resources divided by the average cost of care to a private patient for skilled nursing facility services in the region in which such person is institutionalized, on the date the person first applies or recertifies for MA as an institutionalized person.

(b) For purposes of this subparagraph:

(1) uncompensated value is the fair market value of the resource at the time it was transferred, less any compensation received for the resource; and

(2) the cost of care to a private patient in the region in which the person is institutionalized will be presumed to be 120 percent of the average MA rate for skilled nursing facility care for the facilities within the region. The average regional rate will be updated each January 1st by the department. Regions shall be the same as those established by section 2807-c of the Public Health Law.

(c) Notwithstanding the provisions of clause (a) of this subparagraph, multiple transfers of resources within a 30-month period will be considered to be a single transfer of the total amount of such resources, and the period of ineligibility required by clause (a) will run from the date of the first transfer, to the extent that:

(1) the resources were available at the time of the first transfer and could have been transferred all at once; and

(2) treating the transfers as separate would result in concurrent periods of ineligibility, and in a shorter total period of ineligibility than if the transfers are considered to be a single transfer.

(2) Transfers made by an applicant/recipient or his/her spouse on or after August 11, 1993. (i) Definitions.

(a) Assets include all income and resources of the individual and of the individual's spouse, including income or resources to which the individual or the individual's spouse is entitled but does not receive because of any action or inaction by:

(1) the individual or the individual's spouse;

(2) a person with legal authority to act in place of or on behalf of the individual or the individual's spouse;

(3) a person acting at the direction of or upon the behalf of the individual or the individual's spouse; or

(4) 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.

(b) Institutionalized individual means an in-patient in a nursing facility (including an intermediate care facility for the mentally retarded), an in-patient in a medical facility who is receiving a level of care provided in a nursing facility, or an individual receiving care, services, or supplies pursuant to a waiver under section 1915(c) of the federal Social Security Act.

(c) Look-back period means the 36-month period, or, in the case of payments to or from a trust which are considered to be assets transferred by an applicant/recipient pursuant to subdivision (b) of section 360-4.5 of this Subpart, the 60-month period, immediately preceding the date that an institutionalized individual is both institutionalized and has applied for MA.

(d) Nursing facility means a nursing home as defined by section 2801 of the Public Health Law or an intermediate care facility for the mentally retarded.

(e) 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 level of care provided in a nursing facility, and care, services, or supplies furnished pursuant to a waiver under section 1915(c) of the federal Social Security Act.

(f) Uncompensated value of a transferred asset means the fair market value of the asset at the time it was transferred, less any compensation received in exchange for the asset.

(ii) General rule. In determining the MA eligibility of an institutionalized individual, any transfer of assets for less than fair market value made by the individual or the individual's spouse within or after the look-back period will render the individual ineligible for nursing facility services, as explained in subparagraph (iv) of this paragraph.

(iii) Exceptions. An individual will not be ineligible for MA as a result of a transfer described in subparagraph (ii) of this paragraph if:

(a) the asset transferred was a disregarded or exempt asset under sections 360-4.4(d), 360-4.6, and 360-4.7 of this Subpart, other than a homestead; or

(b) the asset transferred was a homestead, as defined in subdivision 360-1.4(f) of this Part, and title to the homestead was transferred to:

(1) the spouse of the individual; or

(2) a child of the individual who is blind, disabled, or under the age of 21; or

(3) a sibling of the individual who has an equity interest in such homestead and who was residing in such homestead for a period of at least one year immediately before the date the individual became an institutionalized individual; or

(4) a child of such individual who was residing in such homestead for a period of at least two years immediately before the date the individual became an institutionalized individual, and who provided care, as defined in section 311.4(a)(1) of this Title, to such individual which permitted such individual to reside at home rather an than in an institution or facility; or

(c)(1) the asset was transferred:

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

(ii) from the individual's spouse to another for the sole benefit of the individual's spouse; or

(iii) to the individual's child who is blind or disabled, or to a trust established solely for the benefit of such child; or

(iv) to a trust established solely for the benefit of an individual under 65 years of age who is disabled.

(d)(1) a satisfactory showing is made that:

(i) the individual or the individual's spouse intended to dispose of the asset either at fair market value, or for other valuable consideration; or

(ii) the asset was transferred exclusively for a purpose other than to qualify for MA; or

(iii) all assets transferred for less than fair market value have been returned to the individual; or

(e) it is determined that the denial of eligibility will result in an undue hardship. Denial of eligibility will result in an undue hardship if:

(i) the institutionalized individual is otherwise eligible for MA;

(ii) the institutionalized individual is unable to obtain appropriate medical care without the provision of MA; and

(iii) despite his or her best efforts, the institutionalized individual or the individual's spouse is unable to have the transferred asset returned or to receive fair market value for the asset. Best efforts include cooperating, as deemed appropriate by the commissioner of the social services district, in efforts to seek the return of the asset.

(iv) Period of ineligibility.

(a) Any transfer made under this paragraph will cause the applicant/recipient to be ineligible for nursing facility services for a period of months equal to the total, cumulative, uncompensated value of all assets transferred during or after the look-back period divided by the average cost of care to a private patient for nursing facility services in the region in which such individual is institutionalized, on the date the individual first applies or recertifies for MA as an institutionalized individual. For purposes of this subparagraph, the cost of care to a private patient in the region in which the individual is institutionalized will be presumed to be 120 percent of the average MA rate for nursing facility care for the facilities within the region. The average regional rate will be updated each January first by the Department. The regions will be the same as those established by section 2807-c of the Public Health Law.

(b) The period of ineligibility begins 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 period of ineligibility under this subdivision.

(v) Transfers for the sole benefit of a spouse. A transfer by an individual to another is for the sole benefit of the individual's spouse if: the terms and conditions of the transfer are specified in a written instrument of transfer (such as a trust document, deed, or other signed and acknowledged statement), which is executed at or about the time of transfer, clearly limiting the use and enjoyment of the transferred property to the individual's spouse; or there is other evidence, including evidence demonstrating a continuous course of conduct by the person to whom the assets were transferred, establishing that the use and enjoyment of the transferred property has been, and will continue to be limited to the individual's spouse. Any subsequent action by the individual's spouse, or by the person to whom the assets were transferred for the spouse's benefit, which reduces or eliminates the spouse's beneficial use of the transferred property, or the ownership or control of the person to whom the assets were transferred, may be considered a transfer of assets on the date such action is taken. The establishment of a trust for the benefit of a spouse will not be considered a transfer for the sole benefit of such spouse if: during the life of the trust, the trustee has the authority to make distributions for the benefit of anyone other than the spouse; or the trust provides that upon its termination, all or part of the remaining principal and income is to be distributed to someone other than the MA applicant/recipient, or the spouse's estate.

(vi) Jointly-owned assets. 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 will 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.

(vii) Apportioning periods of ineligibility. In the case of a transfer by the spouse of an individual which results in a period of ineligibility for the individual, if the spouse becomes eligible for MA before such period of ineligibility ends, the remaining portion of the period of ineligibility will be divided equally between the individual and the spouse so long as both remain eligible for MA.

(d) Income-producing property. Income-producing property includes but is not limited to real property, buildings, liquid business resources, motor vehicles, machinery, livestock, government permits, inventories, tools, and equipment which are used in a trade or business or which produce rents or land-use fees. Certain income-producing property is not considered an available resource for purposes of determining MA eligibility.

(1) For needy individuals under 21, persons ineligible for ADC solely because their income and resources exceed the ADC eligibility standards, and parents described in section 360-3.3(b)(7) of this Part:

(i) the total equity value of non-liquid resources which generate rental income, real property, and buildings is an available resource if the property produces an annual net return of less than six percent of its equity value. If the property produces a net return on equity of six percent or more, the amount of equity value of the property above $12,000, if any, is an available resource; and

(ii) one-quarter of the amount of liquid resources needed annually to operate a trade or business is not considered an available resource. However, if the applicant/recipient demonstrates that he or she will have to expend a higher amount of liquid resources to operate his or her trade or business in the three-month period beginning with the month of MA application, the higher amount will not be considered an available resource; and

(iii) except as provided in paragraph (3) of this subdivision, all other income-producing property is not considered an available resource for this group of MA applicants/recipients.

(2) For aged, certified blind, or certified disabled applicant's/recipient's, effective May 1, 1990:

(i) the equity value of income-producing property used in a trade or business is not considered an available resource; and

(ii) the equity value of income-producing property not used in a trade or business is considered an available resource if the property: consists of real property or other non-liquid property which generates rental income, land-use fees, or other income; and produces an annual net return of less than six percent of its equity value. If such property produces an annual net return of six percent or more, the amount of equity value of the property above $12,000, if any, is considered an available resource; and

(iii) except as provided in paragraph (3) of this subdivision, all other income-producing property is not considered an available resource for this group of MA applicants/recipients.

(3) For all medically needy MA applicants/recipients, if the equity value of real property and buildings used to produce goods or services for personal use exceeds $12,000, the value in excess of $12,000 is an available resource. All other property used to produce personal goods or services is not considered an available resource.

 

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Section 360-4.5 - Availability of assets held in trust.

360-4.5 Availability of assets held in trust.

(a) Inter vivos trusts created before August 11, 1993. In determining the initial or continuing eligibility of any person applying for or receiving MA, there must be included in the amount of income and resources considered available to such person the maximum amount of payments that may be permitted to be distributed under the terms of an MA-qualifying trust, assuming the full exercise of discretion by the trustee or trustees. For purposes of this subdivision, an MA-qualifying trust is a trust or similar legal device established by a person or by his/her spouse (the grantor or grantors) other than by will, under which the grantor may be the beneficiary of all or part of the payments from the trust and under which one or more trustees are permitted to exercise any discretion with respect to the distribution to the grantor.

(1) This section applies without regard to:

(i) whether the MA-qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for MA; or

(ii) whether the trustee actually exercises discretion with respect to the distribution of payments to the grantor.

(2) Exception. Any trust or initial trust decree established prior to April 7, 1986 solely for the benefit of a mentally retarded individual who resides in an intermediate care facility for the mentally retarded will be excluded in determining initial or continuing eligibility for MA.

(b) Inter vivos trusts created on or after August 11, 1993. For purposes of this subdivision, an individual will be considered to have created a trust if assets of the individual were used to form all or part of the principal (corpus) of the trust, the trust was established other than by will, and the trust was established by: the individual; the individual's spouse; a person acting at the direction of the individual or the individual's spouse, including a court or administrative body; or a person with the legal authority to act in place of or on behalf of the individual or the individual's spouse, including a court or administrative body. In the case of a trust which contains the assets of an individual and of another person or persons, the provisions of this subdivision apply to the portion of a trust's assets which are attributable to the individual.

(1) Irrevocable trusts created by an applicant/recipient. The availability of assets held in an irrevocable trust to an applicant/recipient depends on the trustee's authority, under the specific terms of the trust agreement, to make payments to or for the benefit of the applicant/recipient.

(i) Any portion of the trust principal, and of the income generated by the trust principal, from which no payments may be made to the applicant/recipient under any circumstances, must be considered to be assets transferred by the applicant/recipient for purposes of subdivision (c) of section 360-4.4 of this Subpart. The date of the transfer in such cases is the date the trust is established or, if later, the date on which payment to the applicant/recipient is foreclosed under the terms of the trust agreement.

(ii) Any portion of the trust principal, and of the income generated from the trust, which can be paid to or for the benefit of the applicant/recipient, under any circumstances, must be considered to be an available resource.

(iii) Payments made from the trust to or for the benefit of the applicant/recipient must be considered to be available income in the month paid.

(iv) Any payments from the trust other than those described in clause (iii) of this paragraph must be considered to be assets transferred by the applicant/recipient for purposes of subdivision (c) of section 3604.4 of this Subpart.

(2) Revocable trusts created by an applicant/recipient.

(i) The trust principal and the income generated by the trust principal must be considered as an available resource.

(ii) Payments made from the trust to or for the benefit of the applicant/recipient must be considered to be available income in the month paid.

(iii) Any payments from the trust other than those described in clause (ii) of this paragraph must be considered to be assets transferred by the applicant/recipient for purposes of subdivision (c) of section 3604.4 of this Subpart.

(3) Trusts created by the spouse of an applicant/recipient with the spouse's assets.

(i) Revocable trusts. The availability of trust assets to the spouse is governed by the provisions of paragraph (2) of this subdivision.

(ii) Irrevocable trusts. (a) The trust principal and the income generated by the trust principal must be considered to be assets transferred by the applicant/recipient for purposes of subdivision (c) of section 360-4.4 of this Subpart.

(b) Payments made from the trust to or for the benefit of the applicant/recipient must be considered to be available income in the month paid.

(4) Trusts created by anyone other than the applicant/recipient or a legally responsible relative, including trusts created pursuant to section 7-1.12 of the Estates, Powers, and Trusts Law. Payments made from the trust to the applicant/recipient are available income in the month received. Neither the principal of such a trust nor any in-kind benefits received by the applicant/recipient as a result of disbursements from the trust will be counted as or deemed to be available income or resources for purposes of determining MA eligibility.

(5) Exceptions. (i) Notwithstanding the provisions of paragraphs (1)(4) of this subdivision, the principal and income of the following trusts must not be considered as available income or resources:

(a) A trust containing the assets of a disabled individual if: the trust was created for the benefit of the disabled individual when the disabled individual was under the age of 65; the trust was established by a parent, grandparent, legal guardian, or court of competent jurisdiction; and the trust agreement provides that upon the death of the individual the State must receive all amounts remaining in the trust up to the total value of all MA paid on behalf of the individual.

(b) A trust containing the assets of a disabled individual if: the trust is 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; each account in the trust is established solely for the benefit of a disabled individual by the individual, by the parent, grandparent, or legal guardian of the individual, or by a court of competent jurisdiction; and upon the individual's death amounts remaining in the individual's account which are not retained by the trust must be paid to the State up to the total value of all MA paid on behalf of the individual.

(ii) In the event that a lien has been imposed pursuant to the provisions of section 104-b or section 369 of the Social Services Law upon the funds which are to be used to establish a trust described in subparagraph (i) of this paragraph, on account of MA provided prior to the date the trust is to be established, such lien must be satisfied or otherwise resolved in order for the assets subject to such lien to be disregarded in determining MA eligibility.

(iii) A trustee of a trust described in subparagraph (i) of this paragraph, in order to fulfill his or her fiduciary obligations with respect to the State's remainder interest in the trust, must:

(a) notify the appropriate social services district of the creation or funding of the trust for the benefit of an MA applicant/recipient;

(b) notify the social services district of the death of the beneficiary of the trust;

(c) notify the social services district in advance of any transactions tending to substantially deplete the principal of the trust, in the case of a trust valued at more than 100,000 dollars; for purposes of this clause, the trustee must notify the district of disbursements from the trust in excess of the following percentage of the trust principal and accumulated income: five percent for trusts over 100,000 up to 500,000 dollars; ten percent for trust valued over 500,000 up to 1,000,000 dollars; and fifteen percent for trusts over 1,000,000 dollars;

(d) notify the social services district in advance of any transactions involving transfers from the trust principal for less than fair market value; and

(e) provide the social services district with proof of bonding if the assets of the trust at any time equal or exceed 1,000,000 dollars, unless that requirement has been waived by a court of competent jurisdiction, and provide proof of bonding if the assets of the trust are less than 1,000,000 dollars, if required by a court of competent jurisdiction;

(iv) A social services district or the department may commence a proceeding under section 63 of the Executive Law against the trustee of a trust described in subparagraph (i) of this paragraph, if the district or the department considers any acts, omissions, or failures of the trustee to be inconsistent with the terms of the trust, contrary to applicable laws or regulations (including but not limited to this paragraph), or contrary to the fiduciary obligations of the trustee.

(c) Trusts created by will. Payments made from the trust to the applicant or recipient are available income in the month received. Neither the principal of such a trust nor any in-kind benefits received by the applicant or recipient as a result of disbursements from the trust will be counted as or deemed to be available income or resources for purposes of determining MA eligibility.

(d) Any provision of a trust created on or after April 2, 1992 is void if it directly or indirectly limits, suspends, terminates, or diverts the principal, income, or beneficial interest of the grantor or grantor's spouse in the event that the grantor or grantor's spouse applies for MA or requires medical care, without regard to the irrevocability of the trust or the purpose for which the trust was created. The beneficial interest of the grantor or grantor's spouse includes any income or principal amounts to which the grantor or grantor's spouse would be entitled under the terms of the trust, by right or in the discretion of the trustee, assuming the full exercise of discretion by the trustee.

(e) The provisions of subdivision (b) of this section, with respect to trusts created on or after August 11, 1993, also apply to legal instruments and other devices similar to trusts created on or after August 11, 1993. A legal instrument or other device is similar to a trust if, attendant upon its creation, assets are put under the control of an individual or entity with fiduciary obligations to manage such assets for the benefit of a designated beneficiary or beneficiaries. Legal instruments and devices subject to the provisions of subdivision (b) of this section include, but are not limited to, escrow accounts, investment accounts, and pension funds.

 

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Section 360-4.6 - Net available income and resources.

Sec. 360-4.6 Net available income and resources. Not all of the income and resources available to an applicant/recipient is counted in determining his/her financial eligibility for MA. Certain types and amounts of income and resources are disregarded. After these disregards have been applied, what remains is the applicant's/recipient's net available income and resources. This section lists the types and amounts of income and resource disregards.

(a) Income disregards. (1) Disregards applicable to all MA applicants/recipients:

(i) any payment received under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970;

(ii) any loan made to a family under Title III of the Federal Economic Opportunity Act;

(iii) Federal energy assistance payments;

(iv) payments received by foster parents for care of foster children;

(v) the value of garden produce or livestock when used solely by the applicant/recipient and dependents;

(vi) the value of free school lunches;

(vii) the value of other free meals, except when more than one meal per day is furnished or when the applicant/recipient receives an allowance for meals away from home;

(viii) the value of food stamp coupons;

(ix) the value of federally donated foods;

(x) the value of WIC benefits;

(xi) payments made to participants in the Retired Senior Volunteer Program under the Domestic Volunteer Services Act for services provided to adults who have exceptional needs;

(xii) payments made to participants in the Foster Grandparent Program under the Domestic Volunteer Services Act;

(xiii) payments made to compensate for expenses incident to employment under subparagraph (xi) or (xii) of this paragraph;

(xiv) payments made to volunteers under the VISTA program;

(xv) any funds received by an applicant/recipient from the department of Housing and Urban Development community development block grants;

(xvi) any support and maintenance provided based on need according to section 352.22(s) of this Title;

(xvii) income from roomers/boarders. The first $90 per month of any income received from a person living in the home who is not a member of the family household. If the family can document out-of-pocket expenses greater than $90 per month incurred in providing room and board, these documented expenses will be disregarded;

(xviii) any portion of a grant, scholarship or fellowship used for tuition, fees, or other necessary educational expenses (excluding general living expenses);

(xix) regular cash assistance payments based on need and furnished as supplemental income by the Federal government, a state or political subdivision;

(xx) payments provided as a preventative housing service under subdivision 423.4(1) of this Title;

(xxi) benefits paid to eligible Japanese-Americans or Aleuts under the federal Civil Liberties Act of 1988 and the Aleutian and Pribilof Islands Restitution Act;

(xxii) payments made from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In re Agent Orange product liability litigation, and payments received from court proceedings brought for personal injuries sustained by veterans resulting from exposure to dioxin or phenoxy herbicides in connection with the war in Indochina in the period of January 1, 1962 through May 7, 1975;

(xxiii) refunds or advance payments of the Federal Earned Income Tax Credit; and

(xxiv) payments made for child care services, or the value of any child care services provided to a recipient of employment-related and JOBS-related child care services, transitional child care services, at-risk low income child care services or child care and development block grant services;

(xxv) bona fide loans, as described in section 352.22 of this Title;

(xxvi) any federal major disaster and emergency assistance provided under the Disaster Relief Act of 1974 (P.L. 93-288), as amended by the Disaster Relief and Emergency Assistance Amendments of 1988 (P.L. 100-707), and any comparable disaster assistance provided by states, local governments, and disaster assistance organizations;

(xxvii) distributions to Native Americans of funds appropriated in satisfaction of judgments of the Indian Claims Commission or the United States Court of Federal Claims;

(xxviii) up to $2,000 per year of income from interests of individual Native Americans in trust or restricted lands, from funds appropriated in satisfaction of Indian Claims Commission or United States Court of Federal Claims; and

(2) Additional disregards applicable to MA applicants/recipients who are 65 years of age or older, certified blind or certified disabled. These disregards are to be applied in the following order:

(i) Reserved;

(ii) all reparations payments received from the Federal Republic of Germany;

(iii) the first $20 per month of any unearned income. Only one $20 disregard is permitted per couple. A certified blind or certified disabled child living with parents is entitled to a separate $20 disregard from his/her total unearned income. If a person's unearned income is under $20, the balance will be deducted from earned income;

(iv) the first $65 of earned income;

(v) for disabled MA applicants/recipients, nonmedical, impairment-related work expenses;

(vi) one half of the remaining earned income after the disregards listed in subparagraphs (ii)-(v) of this paragraph have been applied;

(vii) health insurance premiums;

(viii) aid and attendance benefits and housebound benefits received from the Veterans' Administration;

(ix) any refund received from a public agency of taxes paid on real estate or food purchases;

(x) infrequently or irregularly received income up to $20 of unearned income per month and $10 of earned income per month;

(xi) for persons who are certified blind, all remaining reasonable work-related expenses, after the disregards set forth in subparagraphs

(i) -(xi) of this paragraph are applied;

(xii) one third of any support payments received by a certified blind or certified disabled child from an absent parent;

(xiii) any payments made under the Federal Vocational Rehabilitation Act;

(xiv) income, up to $1,200 per calendar quarter but not more than $1,620 per calendar year, earned by a child under 22 years of age who is regularly attending a school, college, university, or a course of vocational or technical training;

(xvi) home energy assistance payments which are based on financial need;

(xvii) interest earned on excluded burial funds and appreciation in the value of an excluded burial arrangement which are to become part of the separately identifiable burial fund;

(xviii) any assistance to an individual (other than wages or salaries) under the Federal Older Americans Act of 1965;

(xix) retroactive benefits under the SSI program; and

(xix) retroactive benefits under the SSI program;

(xx) payments received from a fund established by a state to aid victims of crime;

(xxi) relocation assistance received on or after May 1, 1991 that is provided by a state or local government and is comparable to assistance provided under title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 which is subject to the treatment required by section 216 of such Act;

(xxii) payments made by the Austrian government under paragraphs 500 to 506 of the Austrian General Social Insurance Act provided that the payments remain identifiable as such;

(xxiii) income received from hostile fire pay (pursuant to section 310 of title 37, United States Code) received while in active military service; and

(xxiv) for certified blind or certified disabled persons under 65 years of age, and for certified blind or certified disabled persons age 65 or over who received SSI payments or aid under the State Plan for the certified blind or certified disabled for the month preceding the month of their 65th birthday, any remaining countable income may be set aside for a plan to achieve self-support. The plan must:

(a) be current, in writing and approved by the local commissioner of social services for not more than 18 months, with the possibility of an extension for an additional 18 months. A second extension for an additional 12 months may be allowed in order to fulfill a lengthy educational or training program;

(b) specify planned savings and/or expenditures to achieve a designated feasible occupational objective and a specific period of time to achieve the objective;

(c) provide for the identification and segregation of money and goods, if any, being accumulated and saved; and

(d) be followed by the individual.

(3) Additional disregards applicable to needy individuals under 21, pregnant women, persons ineligible for ADC solely because their income and resources exceed the ADC eligibility standards, parents described in section 360-3.8(b) (7) of this Part. These disregards are to be applied in the following order:

(i) the first $90 of earned income;

(ii) all of the earned income of a child under 21 who is attending a school, college or university or vocational or technical training designed to prepare a person for gainful employment will be disregarded if the student is employed part-time. If a full-time student is employed full-time, his/her income will be disregarded for up to six months in a calendar year;

(iii) after the disregards in subparagraphs (i) and (ii) of this paragraph have been applied, $30 plus one-third of the remainder of monthly earned income will be disregarded for four consecutive months, and $30 per month will be disregarded for an additional eight months after that. This disregard will apply only if:

(a) the applicant received ADC payments in one of the four preceding months;

(b) the period of four consecutive months in which the $30 plus onethird disregard is applied includes any period in which the disregard was applied under the ADC program according to section 352.20 of this Title;

(c) the additional eight-month period following the fourth consecutive month that the $30 plus one-third disregard was applied, and ends with the eighth consecutive month regardless of whether the $30 disregard is actually applied to the person's earned income; and

(d) except as provided in this subparagraph, the disregard is applied in the same manner and subject to the same restrictions as the disregard provided to ADC applicants. Section 352.20(c), (d) and (e) of this Title explain the ADC disregard;

(iv) for individuals employed full-time throughout the month, an amount equal to the actual cost, but not to exceed $175, for the care of each dependent child two years of age or older or incapacitated adult living in the same home and receiving assistance, and an amount equal to the actual cost, but not to exceed $200, for the care of each dependent child under two years of age living in the same home and receiving assistance; for those individuals working less than full-time or not employed throughout the month, an amount equal to the actual cost, but less than $175, for the care of each dependent child two years of age or older or incapacitated adult, and an amount equal to the actual cost, but less than $200 for each dependent child under two years of age;

(v) the first $50 of any child or spousal support payments received in a month;

(vi) money received by a family based on the enrollment of a youth in the Job Corps under the Job Training Partnership Act;

(vii) health insurance premiums; and

(viii) for a person providing family day care for children other than his/her own, $5 per day for each such child.

(b) Resource disregards. (1) Burial funds of MA applicants/recipients and their families will be disregarded as follows:

(i) for needy individuals under 21 years of age and persons ineligible for ADC solely because their income and resources are above eligibility limits, a burial fund will be disregarded if it is separately identifiable as a contractual funeral agreement with a maximum equity value of $1,500 per family member; and

(ii) for persons 65 years of age or older, certified blind or certified disabled, and for spouses of such persons, a burial fund of up to $1,500 will be disregarded if the funds are separately identifiable and monitored as a burial fund. Such burial fund will be made up first of any life insurance policies with a face value of $1,500 or less.

(2) For MA applicants/recipients who are 65 years of age or older, certified blind, or certified disabled, the following additional resources will be disregarded:

(i) all property which is contiguous to the applicant's/recipient's homestead. The term homestead is defined in section 360-1.4(f) of this Part. Contiguous property is the land adjoining the homestead and the buildings located on such land. To be considered contiguous, the land must adjoin the plot on which the home is located and must not be separated from it by intervening real property owned by others. Property will be considered to adjoin other property if the only intervening real property is an easement or public right-of-way such as a street, road, or utility line;

(ii) life insurance policies with a combined face value of $1,500 or less;

(iii) on or after September 1, 1987, pension funds belonging to an ineligible or nonapplying legally responsible relative which are held in individual retirement accounts or in work-related pension plans, including plans for self-employed individuals such as Keogh plans. However, amounts disbursed from a pension fund to a pensioner are income to the pensioner which will be considered in the deeming process;

(iv) reparation payments received from the Republic of Germany provided that the reparation payments remain identifiable as such;

(v) for a period of nine months following the month of receipt, retroactive SSI and social security benefits received during the period of October 1, 1987 through September 30, 1989; for a period of six months following the month of receipt, retroactive SSI and Social Security benefits received on or after October 1, 1989;

(vi) for a period of nine months following the month of receipt, payments received from a fund established by a state to aid victims of crime;

(vii) for a period of nine months following the month of receipt, relocation assistance provided by a state or local government that is received on or after May 1, 1991 and is comparable to assistance provided under title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 which is subject to the treatment required by section 216 of such Act; and

(viii) payments made by the Austrian government under paragraphs 500 to 506 of the Austrian General Social Insurance Act provided that the payments remain identifiable as such.

(3) For certified blind or certified disabled MA applicants/recipients under 65 years of age, and for certified blind or certified disabled MA applicants/recipients age 65 or over who received SSI payments or aid under the State Plan for the blind or disabled for the month preceding the month of their 65th birthday, any remaining countable resources may be set aside for a plan to achieve self-support in accordance with the provisions of subparagraph (a) (2) (xxi) of this section.

(4) For all MA applicants/recipients, payments provided as a preventive housing service under subdivision 423.4(1) of this Title will be disregarded.

(5) A child's savings account of under $500 accumulated from gifts from non-legally responsible relatives or from the child's own wages will be disregarded in determining eligibility.

(6) Benefits received by eligible Japanese-Americans or Aleuts under the federal Civil Liberties Act of 1988 or the Aleutian and Pribilof Islands Restitution Act will be disregarded.

(7) For all MA applicants/recipients, payments provided from the Agency Orange Settlement Fund, from any other fund established pursuant to the settlement in the In re Agent Orange product liability litigation, or from court proceedings brought for personal injuries sustained by veterans resulting from exposure to dioxin or phenoxy herbicides in connection with the war in Indochina in the period of January 1, 1962 through May 7, 1975, will be disregarded.

(8) For all MA applicants/recipients, any payment received under title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.

(9) For all MA applicants/recipients, for the month of receipt and the following month, refunds or advance payments of the Federal Earned Income Tax Credit.

(10) For needy individuals under the age of 21, pregnant women, persons ineligible for ADC solely because their income and resources exceed the ADC eligibility standards, and parents described in section 360-3.3(b)(7) of this Part, bona fide loans will be disregarded. Bona fide loans are described in section 352.22 of this Title.

(11) Any federal major disaster and emergency assistance provided under the Disaster Relief Act of 1974 (P.L. 93-288), as amended by the Disaster Relief and Emergency Assistance Amendments of 1988 (P.L. 100-707), and any comparable disaster assistance provided by states, local governments, and disaster assistance organizations will be disregarded.

(12) For all MA applicants/recipients, interests of individual Native Americans in trust or restricted lands, from funds appropriated in satisfaction of judgments of the Indian Claims Commission or the United States Court of Federal Claims will be disregarded in determining eligibility.

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Section 360-4.7 - Standard exemptions.

360-4.7 Standard exemptions. (a) Resources. All resources available to the household of a pregnant woman, an infant younger than one year of age, a child at least one year of age but younger than six years of age whose household income does not exceed 133 percent of the applicable Federal poverty line set forth in section 360-4.7(b) of this Subpart, or child born after September 30, 1983 who is at least six years of age but younger than 19 years of age and whose household income does not exceed 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart, are exempt from consideration in determining whether such pregnant woman, infant, or child is medically needy. The following resources are exempt from consideration in determining whether any other MA applicant/recipient is medically needy:

(1) a homestead which is essential and appropriate to the needs of the household. Homestead is defined in section 360-1.4(f) of this Part.

(i) For persons under 21 years of age and persons ineligible for ADC solely because their income and resources are above eligibility limits, a homestead loses its exempt status if the owner is in a medical facility in permanent absence status, as defined in section 360-1.4(k) of this Part, and no spouse, child under 21 years of age, certified blind or certified disabled child, or other dependent relative is living in the home.

(ii) For persons who are 65 years of age or older, certified blind or certified disabled, a homestead loses its exempt status if the owner moves out of the home without the intent to return, and no spouse, child under 21 years of age, certified blind or certified disabled child, or other dependent relative is living in the home.

(iii) As set forth in section 360-4.4(c)(2) of this Part, transfers of homesteads to certain persons may result in ineligibility for MA coverage of certain care, services, and supplies, including nursing facility services;

(2) essential personal property including but not limited to:

(i) clothing and personal effects;

(ii) household furniture, appliances, and equipment;

(iii) tools and equipment which are necessary for a trade or business; and

(iv) an automobile;

(3) one burial plot or space per household member; and

(4) savings equal to at least one half of the appropriate income exemption allowed.

(b) Income. (1) After an applicant's/recipient's household size has been determined, all available income identified and all applicable disregards applied, the applicant's/recipient's net available household income will be compared to the appropriate standard, except as provided in paragraphs (2), (3) and (4) of this subdivision. The standard which will be used by the social services district is the MA standard shown on the following schedule, or the public assistance (PA) standard of need, whichever is higher.

Schedule MA-2

Number in Household   1          2              3           4              5              6              7

*Annual                   $6,700   $9,700   $9,800   $10,200   $11,900   $13,600   $15,300

**Monthly                  $ 559    $ 809    $ 817      $ 850       $ 992      $ 1,134     $ 1,275

*For each additional person after seven add $1,700.

**For each additional person after seven add $ 142.

(2) The net available income of a pregnant woman, an infant younger than one year of age, or a child born after September 30, 1983 who is at least six years of age but younger than 19 years of age will be compared to the highest of the following three amounts: the applicable MA standard; the applicable PA standard of need; or, 100 percent of the applicable poverty line, as set forth in the following schedule:

Poverty Lines effective January 1, 1996

Number in Household   1            2               3             4               5              6              7

*Annual                    $7,740   $10,360   $12,980   $15,600   $18,220   $20,840   $23,460

**Monthly                  $ 645     $ 863      $ 1,081    $ 1,300     $ 1,518   $ 1,736    $ 1,955

*For each additional person after seven add $2,620.

**For each additional person after seven add $ 218.

(3) If the net available household income of a pregnant woman or infant younger than one year of age exceeds the highest of the three amounts described in paragraph (2) of this subdivision, the social services district will compare it to 185 percent of the applicable federal poverty line, as set forth in the following schedule:

185 Percent of Poverty Lines effective January 1, 1996

Number in Household    1             2             3               4            5              6               7

*Annual                   $14,319   $19,166   $24,013   $28,860   $33,707   $38,554   $43,401

**Monthly                $ 1,193     $ 1,597   $ 2,001    $ 2,405     $ 2,808   $ 3,212     $ 3,616

*For each additional person after seven add $4,847.

**For each additional person after seven add $ 403.

(4) The net available household income of a child at least one year of age but younger than six years of age will be compared to the applicable MA standard or the PA standard of need, whichever is higher. If the net available household income of such child exceeds the higher of these two amounts, the social services district will compare it to 133 percent of the applicable Federal poverty line, as set forth in the following schedule:

133 Percent of Poverty Lines effective January 1, 1996

Number in Household     1              2               3              4                5                6              7

*Annual                    $10,294    $13,778    $17,263    $20,748    $24,232    $27,717    $31,201

**Monthly                  $ 857      $ 1,148      $ 1,438     $ 1,729      $ 2,019    $ 2,309     $ 2,600

*For each additional person after seven add $3,484.

**For each additional person after seven add $ 290.

(5) To determine if an individual meets the income requirements to be a specified low income Medicare beneficiary as defined in 360-7.7(i) of this Part, compare the individual's income to 100 percent of the poverty line as defined in paragraph (2) of this subdivision and 120 percent of the poverty line as set forth in the following schedule. The individual's income meets the income requirements if it is greater than 100 percent, but less than 120 percent of the poverty line:

The 110 Percent of Poverty Lines schedule in paragraph (5) of subdivision (b) of section 360-4.7 is amended to read as follows:

120 Percent of Poverty Lines effective January 1, 1996

Number in Family     1              2

*Annual                $9,288    $12,432

**Monthly              $ 774      $ 1,036

 

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Section 360-4.8 - Determination of financial eligibility; effect of excess

360-4.8 Determination of financial eligibility; effect of excess income and resources on eligibility. (a) Financial eligibility.

(1) Except as provided in paragraphs (2), (3), (4), and (5) of this subdivision, an applicant/recipient is financially eligible for MA if his or her net available income and net available resources do not exceed the appropriate standards. The standards are found in section 360-4.7 of this Subpart.

(2) (i) A pregnant woman is financially eligible for MA if her net available income does not exceed the highest of the following three items: the applicable MA standard; the applicable PA standard of need; or 100 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart.

(ii) A pregnant woman is financially eligible for comprehensive prenatal care services available under the Prenatal Care Assistance Program, as listed in Public Health Law, section 2522, if her net available income exceeds the highest of the three items listed in subparagraph (i) of this paragraph but does not exceed 185 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart.

(3) An infant younger than one year of age is financially eligible for MA if his or her net available household income does not exceed 185 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart.

(4) A child at least one year of age but younger than six years of age is financially eligible for MA if his or her net available household income does not exceed 133 percent of the applicable Federal poverty line set forth in section 360-4.7(b) of this Subpart.

(5) A child born after September 30, 1983 who is at least six years of age but younger than 19 years of age is financially eligible for MA if his or her net available household income does not exceed 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart.

(6) Applicants/recipients who are financially eligible under paragraphs (1) through (5) of this subdivision will be authorized to receive MA if they also meet the non-financial eligibility requirements. The non-financial eligibility requirements are found in Subpart 360-3 of this Part.

(b) Reduction of excess resources. An MA applicant/recipient whose net available resources exceed the resource standards will be ineligible for MA until he/she incurs medical expenses equal to or greater than the excess resources. However, nonexempt resources transferred for less than their fair market value may still be considered available, under section 360-4.4(c) of this Subpart.

(c) Reduction of excess income. (1) Except as provided in paragraphs (4) and (5) of this subdivision, if an otherwise eligible MA applicant's or recipient's net available income exceeds the appropriate income standard, he or she will be eligible for MA only after incurring medical expenses equal to or greater than the amount of excess income, provided such medical expenses are not subject to payment by a third party other than another public program of the State or any of its political subdivisions. Once deduction of incurred medical expenses reduces income to the income standard, the MA applicant or recipient is eligible for MA; however, no MA payment will be made for those incurred medical expenses used to establish eligibility. The social services district will deduct from the MA applicant's income the following medical expenses incurred by the applicant, by family members living with the applicant for whom the applicant is legally responsible, and by legally responsible relatives living with the applicant, in the order listed below and regardless of whether these expenses are subject to payment by another public program of the State or any of its political subdivisions:

(i) expenses incurred for Medicare and other health insurance premiums, deductibles, or coinsurance charges;

(ii) expenses incurred for necessary medical and remedial services that are recognized under State law but are not covered by MA; and

(iii) expenses incurred for necessary medical and remedial services that are covered under the MA program.

(2) Budgeting periods. (i) To be eligible for MA coverage for acute care in a medical facility, an applicant/recipient must incur medical expenses equal to or greater than the amount of his/her excess income for a period of six months. Once that amount of medical expenses has been incurred, the applicant/recipient may receive full MA coverage for a period of six months.

(ii) To be eligible for MA coverage of all medical care, services and supplies outside the medical facility, as well as prosthetic appliances (including dentures), the applicant/recipient must incur medical expenses in the month equal to or greater than the amount of his/her excess monthly income. When that amount of medical expenses has been incurred, the applicant/recipient will receive MA outpatient coverage for any additional medical expenses incurred in that month.

(iii) If an MA recipient regularly receives home care in the community but is temporarily absent from the home to receive respite care for a fixed period of up to four weeks in an intermediate care facility, skilled nursing facility, or residential health care facility, he/she will be eligible for MA coverage of the respite care for each month in which incurred medical expenses are at least equal to the amount of monthly excess income. Respite care is infrequent and temporary substitute care or supervision provided to a person on behalf of and in the absence of the caregiver, in order to relieve the caregiver from the stresses or responsibilities of providing constant care and to enable the caregiver to maintain a normal routine. Respite care must be provided in accordance with the terms of approved Federal waivers.

(3) For services regularly requiring prior approval, after the social services district tells the recipient the amount of services that are medically necessary for him/her, as determined by the district according to applicable regulations, additional medical services over and above the amount which is medically necessary cannot be used to reduce the amount of the recipient's excess income.

(4) Except as provided in paragraph (5) of this subdivision, a social services district will authorize MA for an otherwise eligible MA applicant or recipient who pays to the district the amount that his or her net available income exceeds the appropriate income standard, provided that the district submits to the department and receives approval of a plan for the pre-payment of excess income.

(i) A plan for the pre-payment of excess income must provide that:

(a) the MA applicant or recipient has the option of participating in the pre-payment program;

(b) the MA applicant or recipient must pay to the social services district the amount that his or her net available income exceeds the appropriate income standard for the budgeting period specified in paragraph (2) of this subdivision, minus the amount of any medical expenses incurred during the budgeting period or credited pursuant to subparagraph (iii) of this paragraph which are not payable by the MA program;

(c) the social services district must safeguard the amounts paid to it by an MA recipient who participates in the pre-payment program by depositing such amounts in a special pre-payment account;

(d) the social services district must periodically reconcile the amount in the MA recipient's pre-payment account with the amount of MA payments made on his or her behalf for the budgeting period specified in paragraph (2) of this subdivision to determine if a refund to the MA recipient or credit to the MA recipient's pre-payment account for subsequent spenddown period(s) is appropriate; and

(e) the social services district must report to the department the pre-payment amounts collected minus any refunds made pursuant to subparagraph (iii) of this paragraph.

(ii) A plan for the pre-payment of excess income must include a detailed description of how the social services district will:

(a) administer the pre-payment program;

(b) enroll MA applicants and recipients; and

(c) meet the requirements of subparagraphs (i) and (iii) of this paragraph.

(iii) Refunds and credits.

(a) If an MA recipient makes a payment pursuant to this paragraph and then incurs medical expenses during the budgeting period that are not payable by MA, the social services district must:

(1) refund to the MA recipient the amount of such medical expenses from the recipient's pre-payment account for that budgeting period. If the amount of such medical expenses exceeds the MA recipient's pre-payment account for that budgeting period, the district must credit the remainder to the MA recipient's pre-payment account for the subsequent spenddown period(s); or

(2) credit the amount of such medical expenses to the MA recipient's pre-payment account for the subsequent spenddown period(s).

A plan for the pre-payment of excess income may provide for the social services district to make this refund separately as described in this clause or as part of the periodic refund described in clause (b) of this subparagraph.

(b) The social services district will periodically compare the amount in the MA recipient's prepayment account, minus any amount to be refunded for medical expenses which are not payable by MA, to the amount of MA payments made on his or her behalf for the budgeting period specified in paragraph (2) of this subdivision. If the former exceeds the latter, the social services district must periodically refund the difference to the MA recipient or credit the difference to the recipient's pre-payment account for the subsequent spenddown period(s).

(iv) When a social services district submits a pre-payment plan for excess income to the department for approval, the department will approve, disapprove, or request the social services district to modify such plan within 90 days of receipt of the plan.

(5)(i) Federally nonparticipating persons described in section 360-3.3(b) (7) of this Part whose net available income exceeds the appropriate income standard cannot become eligible for MA by incurring medical expenses equal to or greater than the amount of their excess income.

(ii) (a) A pregnant woman whose net available income exceeds 185 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart:

(1) cannot become eligible for comprehensive prenatal care services listed in Section 2522 of the Public Health Law by incurring medical expenses equal to or greater than the amount by which her net available income exceeds 185 percent of such line; and

(2) cannot become eligible for full MA coverage by incurring medical expenses equal to or greater than the amount by which her net available income exceeds 100 percent of such line.

(b) A pregnant woman whose net available income exceeds 100 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart but does not exceed 185 percent of such line cannot become eligible for full MA coverage by incurring medical expenses equal to or greater than the amount by which her net available income exceeds 100 percent of such line.

(c) An infant younger than one year of age whose net available income exceeds 185 percent of the applicable poverty line listed in section 360-4.7(b) of this Subpart cannot become eligible for MA by incurring medical expenses equal to or greater than the amount by which his or her net available income exceeds 185 percent of such line.

(iii) A child at least one year of age but younger than six years of age whose net available household income exceeds 133 percent of the applicable Federal poverty line set forth in section 360-4.7(b) of this Subpart cannot become eligible for MA coverage by incurring medical expenses equal to or greater than the amount by which his or her net available household income exceeds 133 percent of such poverty line.

(iv) A child born after September 30, 1983 who is at least six years of age but younger than 19 years of age whose net available household income exceeds 100 percent of the applicable federal poverty line set forth in section 360-4.7(b) of this Subpart cannot become eligible for MA by incurring medical expenses equal to or greater than the amount by which his or her net available household income exceeds 100 percent of such poverty line.

(v) A pregnant woman or child described in subparagraphs (ii), (iii), or (iv) of this paragraph can become eligible for full MA coverage only by incurring medical expenses equal to or greater than the amount by which his or her net available household income exceeds the higher of the applicable MA standard or PA standard of need.

 

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Section 360-4.9 - Post-eligibility utilization of income.

360-4.9 Post-eligibility utilization of income. For a person in permanent absence status in a medical facility, after MA eligibility is established the person is subject to chronic care budgeting. Under chronic care budgeting, all income must be applied toward the cost of care in the facility, including income disregarded or considered unavailable for the purpose of determining MA eligibility. However, before any income is required to be applied to the person's cost of care, deductions will be made in the following order:

(a) For an institutionalized person without a community spouse:

(1) A personal needs allowance of $50 will be allotted to an applicant/recipient who is a resident of a residential health care facility, as defined by article 28 of the Public Health Law, or who is in permanent absence status in an acute care hospital certified under article 28 of the Public Health Law. A personal needs allowance of $35 will be allotted to an applicant/recipient who is a resident of a psychiatric care facility, developmental center, or related intermediate care facility regulated by article 31 of title E of the Mental Hygiene Law. A personal needs allowance equal to the amount of a reduced veteran's pension pursuant to 38 U.S.C. 5503(f), but not to exceed $90, will be allotted to an applicant/recipient who receives such pension or who has elected a greater compensation benefit under 38 CFR 3.701 in lieu of such pension.

(2) An amount will be deducted to cover third-party health insurance premiums.

(3) An amount will be set aside to meet any maintenance needs of dependent members of the applicant's/recipient's former family household. The amount deducted will be the amount needed to bring the income of the family up to the MA standard or the public assistance standard of need, whichever is higher.

(4) An amount will be deducted to cover any expenses incurred for medical care, services, supplies, or remedial care for the institutionalized individual not subject to payment under this Title or by a third party.

(5) The following income received by an applicant/recipient in a residential health care facility is not required to be applied toward the cost of medical care:

(i) money received as the result of a legal action against the residential health care facility because of improper and/or inadequate treatment;

(ii) income necessary to achieve a plan of self-support as described in section 360-4.6(a)(2)(xxi) of this Subpart;

(iii) SSI benefits paid under section 1611(e)(1)(E) of the Social Security Act;

(iv) reparation payments received from the Federal Republic of Germany;

(v) benefits paid to eligible Japanese-Americans and Aleuts under the Federal Civil Liberties Act of 1988 and the Aleutian and Pribilof Islands Restitution Act;

(vi) payments made from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In re Agent Orange product liability litigation, and payments received from court proceedings brought for personal injuries sustained by veterans resulting from exposure to dioxin or phenoxy herbicides in connection with the war in Indochina in the period of January 1, 1962 through May 7, 1975; and

(vii) income equal to the amount of a reduced pension pursuant to 38 U.S.C. 5503(f), for a veteran's surviving spouse who receives such a pension; such income will count toward the personal needs allowance described in paragraph (1) of this subdivision.

(b) For an institutionalized spouse, as defined in section 360-4.10(a)(7) of this Subpart, the deductions set forth in section 360-4.10(b)(4) of this Subpart and in paragraphs (a)(2) and (5) of this section will be made.

 

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Section 360-4.10 - Treatment of income and resources of institutionalized spouses

360-4.10 Treatment of income and resources of institutionalized spouses.

(a) Definitions. Notwithstanding any regulations to the contrary, when used in this section, unless the context clearly requires otherwise:

(1) Applicable percent of the annual federal poverty level means 122 percent as of September 30, 1989, 133 percent as of July 1, 1991, and 150 percent on and after July 1, 1992.

(2) Community spouse means a person who is the spouse of an institutionalized person and who is residing in the community.

(3) Community spouse monthly income allowance means the amount by which the community spouse's minimum monthly maintenance needs allowance, as defined in paragraph (8) of this subdivision, exceeds the community spouse's otherwise available monthly income, or such greater amount as may be established by fair hearing decision or court order for the support of the community spouse.

(4) Community spouse resource allowance. (i) Prior to January 1, 1996, community spouse resource allowance means the amount by which the greatest of the following amounts exceeds the total value of the community spouse's resources:

(a) $60,000 (as increased annually by the same percentage as the percentage increase in the Federal consumer price index);

(b) the amount established for support of the community spouse pursuant to a fair hearing under Part 358 of this Title; or

(c) the amount transferred pursuant to court order for the support of the community spouse.

(ii) On and after January 1, 1996, community spouse resource allowance means the amount by which the greatest of the following amounts exceeds the total value of the community spouse's resources:

(a) $74,820;

(b) the lesser of the spousal share (as defined in paragraph (11) of this subdivision), or $60,000 (as increased annually by the same percentage as the percentage increase in the Federal consumer price index);

(c) the amount established for support of the community spouse pursuant to a fair hearing under Part 358 of this Title; or

(d) the amount transferred pursuant to court order for the support of the community spouse.

(5) Family member means a minor child, dependent child, dependent parent or dependent sibling of the institutionalized spouse or of the community spouse who resides with the community spouse. For purposes of this paragraph, a person is dependent if over 50 percent of his/her maintenance needs are met by the community spouse and/or the institutionalized spouse.

(6) Family allowance for each family member is an amount equal to one third of the amount by which the applicable percent of one twelfth of the annual federal poverty level for a family of two members exceeds the amount of the available monthly income of that family member.

(7) Institutionalized spouse means a person who: is in a medical institution or nursing facility and is likely to remain in a medical institution or nursing facility for at least 30 consecutive days or is receiving home and community-based services provided pursuant to a waiver under section 1915(c) of the Federal Social Security Act and is likely to receive such services for at least 30 consecutive days; and who is married to a spouse who is not in a medical institution or nursing facility or who is not likely to receive such home and community-based services pursuant to a waiver under section 1915(c) of the Social Security Act for 30 consecutive days.

(8) Minimum monthly maintenance needs allowance means an amount equal to $1,500 to be increased annually by the same percentage as the percentage increase in the Federal consumer price index.

(9) Resources do not include those disregarded or exempt under sections 360-4.4(d), 360-4.6(b) and 360-4.7(a) of this Subpart, except that pension funds belonging to a community spouse which are held in individual retirement accounts or in work-related pension plans, including plans for self-employed individuals such as Keogh plans, are countable resources of the community spouse for purposes of determining the institutionalized spouse's eligibility and calculating the amount of any community spouse resource allowance.

(10) Significant financial distress means exceptional expenses which the community spouse cannot be expected to meet from the monthly maintenance needs allowance or from amounts held in resources. Such expenses may be of a recurring nature or may represent major one time costs, and may include but are not limited to: recurring or extraordinary noncovered medical expenses; amounts to preserve, maintain or make major repairs on the homestead; and amounts necessary to preserve an incomeproducing asset.

(11) Spousal share means an amount equal to one-half of the total value of the countable resources of the community spouse and the institutionalized spouse, as of the beginning of the first continuous period of institutionalization beginning on or after September 30, 1989, to the extent that either, or both, have an ownership interest as of the date of the continuous period of institutionalization of the institutionalized spouse.

(12) Undue hardship means a situation where:

(i) a community spouse fails or refuses to cooperate in providing necessary information about his/her resources;

(ii) the institutionalized spouse is otherwise eligible for MA;

(iii) the institutionalized spouse is unable to obtain appropriate medical care without the provision of MA; and

(iv) (a) the community spouse's whereabouts are unknown; or

(b) the community spouse is incapable of providing the required information due to illness or mental incapacity; or

(c) the community spouse lived apart from the institutionalized spouse immediately prior to institutionalization; or

(d) due to the action or inaction of the community spouse, other than the failure or refusal to cooperate in providing necessary information about his/her resources, the institutionalized spouse will be in need of protection from actual or threatened harm, neglect, or hazardous conditions if discharged from an appropriate medical setting.

(b) Treatment of income. (1) At any time after the commencement of a continuous period of institutionalization, an assessment of the amount of the community spouse monthly income allowance and/or family allowance may be requested in accordance with subdivision (c) of this section.

(2) Unless rebutted by a preponderance of the evidence, for purposes of determining MA eligibility the following presumptions will apply with respect to the availability of income to an institutionalized spouse:

(i) No income of the community spouse shall be considered available to the institutionalized spouse except as provided for in this section.

(ii) Income solely in the name of the institutionalized spouse or the community spouse shall be considered available only to that respective spouse.

(iii) Income in the names of the institutionalized spouse and the community spouse shall be considered available one half to each spouse.

(iv) Income in the names of the institutionalized spouse or the community spouse, or both, and also in the name of another person or persons, shall be considered available to each spouse in proportion to the spouse's interest or, if in the names of both spouses and no share is specified, one half of the joint interest shall be considered available to each spouse.

(v) Income from a trust shall be considered available to each spouse in accordance with the provisions of the trust instrument, or, in the absence of a specific trust provision allocating income, in accordance with the provisions of subparagraphs (ii) through (iv) of this paragraph.

(vi) Income in which there is no instrument establishing ownership shall be considered to be available one-half to each spouse.

(3) The eligibility of an institutionalized spouse for MA for the first month or partial month of institutionalization will be determined by comparing his/her net available income, computed in accordance with section 360-4.6(a)(1) and (2) of this Part, and any income actually contributed by the community spouse, to the appropriate MA or PA income standard for one person. Thereafter, the institutionalized spouse's eligibility for MA and liability for the cost of care will be determined in accordance with this section and with sections 360-1.4(c) and 360-4.9 of this Part until the month following the month in which he/she ceases to be an institutionalized spouse.

(4) In determining the amount of the institutionalized spouse's income to be applied toward the cost of medical care, services and supplies, the following items will be deducted from the otherwise available monthly income of the institutionalized spouse in the following order:

(i) a personal needs allowance;

(ii) a community spouse monthly income allowance, but only to the extent that the income is made available to or for the benefit of the community spouse;

(iii) a family allowance for each family member; and

(iv) any expenses incurred for medical care, services or supplies and remedial care for the institutionalized spouse not subject to payment under this Title or by a third party.

(5) The community spouse will be requested to contribute 25 percent of his/her income in excess of the minimum monthly maintenance needs allowance and any family allowances toward the cost of necessary care or assistance for the institutionalized spouse. An institutionalized spouse will not be denied MA because the community spouse refuses or fails to make such income available. However, nothing contained in this paragraph prohibits a social services district from enforcing the provisions of the Social Services Law which require financial contributions from legally responsible relatives, or recovering from the community spouse the cost of any MA provided to the institutionalized spouse.

(6) If either spouse establishes that the community spouse needs income above the level established by the social services district as the minimum monthly maintenance needs allowance, based upon exceptional circumstances which result in significant financial distress as defined in paragraph (a) (9) of this Subpart, the department must substitute an amount adequate to provide additional necessary income from the income otherwise available to the institutionalized spouse.

(c) Treatment of resources. The following rules apply in determining the resources available to the institutionalized spouse and the community spouse when establishing eligibility for MA for the institutionalized spouse.

(1) At any time after the commencement of a continuous period of institutionalization, either spouse may request an assessment of the total value of their resources, or may request to be notified of the amounts of the community spouse monthly allowance, the community spouse resource allowance, and the family allowance, and/or the method of computing such amounts.

(i) Assessment. Upon receipt of a request for assessment, together with all relevant documentation of the resources of both spouses, the social services district must assess and document within thirty days the total value of the spouses' resources and provide each spouse with a copy of the assessment and the documentation upon which it was based. If the request is not part of an MA application, the social services district may charge a fee not exceeding $25 for the assessment which is related to the cost of preparing and copying the assessment and documentation.

(ii) Determination of allowances. At the request of either spouse, the social services district must notify the requesting spouse of the amounts of the community spouse monthly income allowance, the community spouse resource allowance, and the family allowance, and/or the method of computing such amounts.

(iii) Notice of right to a fair hearing. At the time of an assessment or a determination of allowances pursuant to this paragraph, the social services district must provide to each spouse who received a copy of such assessment or determination a notice of the right to a fair hearing under section 358-3.1(g) of this Title. If the assessment or determination is made in connection with an application for MA, the fair hearing notice must be sent to both spouses at the time of eligibility determination is made. Section 358-3.1(g) of this Title provides a fair hearing right to an institutionalized spouse or community spouses, after a determination has been made on the institutionalized spouse's MA application, if the spouse is dissatisfied with the determination of the community spouse monthly income allowance, the amount of monthly income determined to be otherwise available to the community spouse, the amount of resources attributed to the community spouse or to the institutionalized spouse, or the determination of the community spouse resource allowance.

(2) At the time of application of the institutionalized spouse for MA, all resources, including resources required to be considered in determining eligibility pursuant to section 360-4.4 of this Subpart, held by either the institutionalized spouse or the community spouse, or both, will be considered available to the institutionalized spouse to the extent that the value of the resources exceeds the maximum community spouse resource allowance.

(3) In the event that a community spouse fails or refuses to cooperate in providing necessary information about his/her resources, such refusal will be a reason for denying MA for the institutionalized spouse because MA eligibility cannot be determined. However, an institutionalized spouse will not be determined ineligible for MA in this situation if; the institutionalized spouse executes an assignment of his/her right to pursue support from the community spouse in favor of the social services district and the department, or is unable to execute such an assignment due to physical or mental impairment; and to deny assistance would be an undue hardship, as defined in subdivision (a) of this section.

(4) If necessary information about the resources of the community spouse is provided, but the community spouse fails or refuses to make available his/her resources in excess of the maximum community spouse resource allowance, the institutionalized spouse will be eligible for MA only if; the institutionalized spouse is otherwise eligible; and the institutionalized spouse executes an assignment of his/her right to pursue support from the community spouse in favor of the social services district and the department, or the institutionalized spouse is unable to execute such an assignment due to physical or mental impairment. However, nothing contained in this paragraph prohibits a social services district from enforcing the provisions of the Social Services Law which require financial contributions from legally responsible relatives, or recovering from the community spouse the cost of any MA provided to the institutionalized spouse.

(5) After the month in which the institutionalized spouse has been determined eligible for MA during a continuous period of institutionalization, no resource of the community spouse will be considered available to the institutionalized spouse.

(6) Notwithstanding section 360-4.4 of this Subpart, after an institutionalized spouse is determined eligible for MA, transfers of resources by the institutionalized spouse to the community spouse will be permitted to the extent that the transfers are solely to or for the benefit of the community spouse and do not exceed the value of the community spouse resource allowance. Such transfers must be made within 90 days of the eligibility determination or within such longer period as determined by the social services district in individual cases. Such resources must actually be made available to meet the needs of the community spouse in order to be excluded when determining the continuing eligibility of the institutionalized spouse.

(7) If either spouse establishes that income generated by the community spouse resource allowance, established by the social services district, is inadequate to raise the community spouse's income to the minimum monthly maintenance needs allowance, the department must establish a resource allowance adequate to provide such minimum monthly maintenance needs allowance from those resources considered to be available to the institutionalized spouse.

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SubPart 360-5 - ELIGIBILITY BASED ON DISABILITY

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Section 360-5.1 - Introduction.

Section 360-5.1 Introduction. This Subpart sets forth requirements relating to the determination of MA eligibility based on disability status, and defines terms used in the disability determination process.

 

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Section 360-5.2 - Definitions.

360-5.2 Definitions. When used in this Subpart, unless otherwise expressly stated or unless the context or subject matter requires a different interpretation, the following mean:

(a) Blindness for MA purposes is defined as the total lack of vision or residual vision being no better than 20/200 in both eyes with best correction, or restriction of the visual fields, or other factors which affect the usefulness of vision as prescribed in the appropriate medical criteria published by the department.

(b) Disability is the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.

(c) Disability review team. The disability review team must be composed of a medical or psychological consultant and another person who is qualified to interpret and evaluate medical reports and other evidence relating to an individual's physical or mental impairments. As necessary, the other person also must be able to determine the individual's capacity to perform substantial gainful activity. The review team must review the medical report, which must include a diagnosis, and medical and non-medical evidence sufficient to determine whether the individual's condition meets the definition of disability.

(d) Substantial gainful activity is any work of a nature generally performed for remuneration or profit, involving the performance of significant physical or mental duties or a combination of both. Work may be considered substantial even if performed part-time, and even if it is less responsible than the individual's former work, and it may be considered gainful if it pays less than former work. The application of this definition and of the amount of earnings that could result in a finding or deeming of substantial gainful activity must be in accordance with applicable Federal regulations.

(e) Group I. This classification includes persons who show no possibility of engaging in a useful occupation because they have permanent impairments which are totally disabling and definitely irreversible.

(f) Group II. Individuals having permanent impairments which, while totally disabling at the time of initial determination, are such that the conditions may be arrested or a remission may occur, or for which therapeutic advances are occurring or where rehabilitation is deemed feasible. Group II designation is limited to those persons who are expected to show a change in physical or mental status or improved functioning which will enable them to become capable of substantial gainful activity.

 

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Section 360-5.3 - Medical criteria for disability determination.

360-5.3 Medical criteria for disability determination. The medical criteria to be used in determining disability for MA eligibility is the same medical criteria set forth in Federal regulations for determining disability for social security and SSI purposes.

 

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Section 360-5.4 - Reapplication.

360-5.4 Reapplication. Reapplication for MA as disabled is processed as any other reapplication.

(a) When an individual reapplies after he/she has been certified as disabled by an MA-only disability review team, group I or group II, and his/her case is closed for reasons unrelated to a change in disability (e.g., increased pension or other benefits), there is no need for a disability review team evaluation unless:

(1) 12 months or more have elapsed since date of last case closing;

(2) the individual has, in the interim, engaged in a useful occupation; and

(3) the individual has, in the interim, had a significant change in treatment such as major surgery, a stay in a rehabilitation center or a period of diagnostic hospitalization.

(b) Cases reopened as group II in accordance with the instruction listed in this section, without review team review, must be reviewed on the date which had been set before the case was closed. If reapplication of group II cases occurs subsequent to the date set for review by the review team, the agency must secure and transmit any additional data requested at previous review and all required forms previously submitted.

 

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Section 360-5.5 - Examination.

360-5.5 Examination. The cost of examinations, consultations, completion of medical forms, and tests requested by MA-only disability review teams must be paid by the local agency. Reimbursement is available for these services as an administrative expense in accordance with section 609.5(b) of this Title.

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Effective Date: 
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Section 360-5.6 - Grandfathered cases.

360-5.6 Grandfathered cases. Recipients of MA only who were determined disabled under the AABD program (prior to January 1, 1974) will continue to be considered disabled for MA purposes as long as there is no break in their eligibility for the program. Recipients determined disabled prior to January 1,1974 as a group II, upon review, must have their continuing eligibility determined based on the medical criteria in effect at the time of the initial review.

 

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Section 360-5.7 - Pending of disability cases.

360-5.7 Pending of disability cases. Disability status must be determined within 90 days of the date of application. This time standard applies except in unusual circumstances (e.g., where the agency cannot reach a decision because of failure or delay on the part of the applicant or an examining physician, or because of some administrative or other emergency that could not be controlled by the agency). This pending period for acting on applications or redeterminations of eligibility must not be used as a waiting period before granting MA. Furthermore, if it is necessary to pend a case beyond this 90-day period, this will not be a basis for denying MA to an applicant or for terminating assistance.

 

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Section 360-5.8 - Effective date of disability.

360-5.8 Effective date of disability. The effective date of disability must be established by the MA-only disability review team. Such date must be either the date on which the client met the disability criteria of this section, or three months prior to the month of application for MA only or public assistance if the applicant/recipient was disabled during this three-month period.

 

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Section 360-5.9 - Trial work period.

360-5.9 Trial work period. Persons determined to be disabled may be entitled to a trial work period during which they retain their disability status.

(a) Definition of services. For the purposes of this section, the term services means activity in employment or self-employment which is performed for remuneration or gain or is determined to be a type normally performed for remuneration or gain. Inasmuch as the trial work provision is intended to give a disabled beneficiary the opportunity to test his/her ability to work and hold a job, minor work activity may generally be disregarded. Therefore, work activity in employment in a month will constitute services only if it is actually or usually performed for remuneration or gain amounting to more than $50, either in cash or in-kind. Work activity in self-employment will be determined to be services only where net earnings in a calendar month are more than $50 for a month or the self-employed person spends more than 15 hours in that month in the work activity. In some self-employed cases, it may not be possible to isolate from the total net earnings the net earnings for each particular month of self-employment. When this occurs, divide the net earnings for the particular work period by the months of self-employment to find net earnings per month. Cases where remuneration for employment is in the form of commissions should be handled in a similar manner.

(b) Activity which does not constitute services for purpose of charging trial work period months. Activity performed by a beneficiary for which payment in excess of $50 a month is made does not constitute services if the activity, although resembling services in employment for remuneration or gain, is:

(1) part of a prescribed program of medical therapy;

(2) carried out in a hospital under the supervision of medical and administrative staff;

(3) not performed in an employer-employee relationship; or

(4) not normally performed for remuneration or gain.

(c) An individual who is still medically severely impaired may render services in as many as nine calendar months (not necessarily consecutive) during which his/her work, regardless of the magnitude, will not be the sole consideration in determining whether disability has ceased. After nine months of services, if the individual's medical condition has not improved, this work will be considered in determining whether he/she has demonstrated an ability to engage in substantial gainful activity as defined in section 360-5.2 of this Subpart. After the end of the trial work period, any work (including the services rendered during any of the nine months) may be considered in determining whether he/she is able to engage in substantial gainful activity in any month thereafter.

(d) Investigation before end of the trial work period. If the medical evidence upon which the initial disability determination is based indicates some likelihood of recovery from the impairment, a return to work before the month the certificate expires will be considered as a possible indication of medical recovery. If it cannot reasonably be determined from the medical evidence in the file and from an interview whether the client is still disabled, the agency should secure additional medical evidence. If the evidence reveals the individual has recovered from his/her impairment, disability status will cease in the month established by current medical evidence. If the medical evidence obtained reveals the individual is still disabled, an approval will be prepared and his/ her case will not be investigated again until after his/her trial period or when a subsequent medical reexamination (group II) becomes due or when affirmative evidence of medical recovery is received, whichever date is earliest. Affirmative evidence of medical recovery may include a report from a physician, hospital, clinic, etc., indicating recovery.

(e) Investigation after end of trial work period. Most disability clients have impairments which, by their nature, are either static or progressive. Since medical recovery is not expected, a return to work under these circumstances is not considered an indication of the possibility of medical recovery. An investigation in this type of case will not be started until the individual has worked in at least nine months of or affirmative action of medical recovery is received before nine months of services have been rendered.

 

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Section 360-5.10 - Medically determined drug addicts and alcoholics.

360-5.10 Medically determined drug addicts and alcoholics. (a) For the purposes of MA disability, an individual will be medically determined to be a drug addict or alcoholic only if he/she is under a disability in accordance with section 360-5.3 of this Subpart, and drug addiction and alcoholism is a contributing factor to a finding of disability. An individual who is under a disability independent of his/her drug addiction or alcoholism will not be medically determined to be a drug addict or alcoholic, for the purpose of MA disability.

(b) Treatment required for medically determined drug addicts and alcoholics. No disabled person will be categorically eligible for MA if he/she is medically determined to be a drug addict or alcoholic, unless he/she is undergoing treatment that is appropriate for his/her condition as a drug addict or alcoholic at an approved institution or facility, so long as such treatment is available and the person demonstrates that he/she is complying with the terms, conditions and requirements of such treatment.

(c) What constitutes appropriate treatment. Appropriate treatment is a recognized medical or other professional procedure for the individual's condition as a drug addict or alcoholic and carried out at, or under the supervision of, an approved treatment facility. This treatment may include medical examination and treatment, psychiatric, psychological and vocational counselling, or other appropriate services. It may be furnished through one or more facilities as part of an individualized treatment plan intended to insure that the individual is receiving treatment appropriate to his/her specific needs.

(d) Institutions or facilities which can provide this treatment. An institution or facility that furnished medically recognized treatment for drug addiction or alcoholism, and is licensed to operate such a program by the State, is approved to provide treatment. This definition includes, but is not limited to, Division of Substance Abuse Services facilities and alcoholic services from the Department of Mental Hygiene.

(e) Availability of treatment. Whether treatment is available to a particular individual depends on the existence of an obtainable treatment vacancy in an approved institution or facility; the condition and circumstances of the individual; the treatment required and the location of the treatment institution or facility, or the services or resources provided by the institution or facility. In determining the availability of treatment, consideration will also be given to the individual's general health, including his/her mobility and capacity to comprehend the essential specification of appropriate treatment, and also the availability and cost of public and private transportation. If an individual is not undergoing treatment for drug addiction or alcoholism because he/she is required to pay therefor at the time of his/her application, and no appropriate facility providing appropriate treatment is available to him/her without charge, such individual will not be categorically ineligible for MA only for the reasons of his/her failure to undergo appropriate treatment. If it is the agency's opinion, based on the above criteria, that treatment is not feasible for a particular individual, this individual would be exempt from required treatment in order to maintain his/her disability status.

 

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Section 360-5.11 - Evaluation of disability.

360-5.11 Evaluation of disability. Factors other than medical should be taken into consideration, where appropriate, in making a determination of disability status. These additional factors include the age of the individual, education and training, and previous work history. The determination of disability must encompass an evaluation of a combination of the individual's medical and social factors.

 

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Section 360-5.12 - Determination of blindness status.

360-5.12 Determination of blindness status. The agency is responsible for the completion of all appropriate forms and the securing of medical evidence to be utilized in the determination of an applicant's/recipient's visual status. This material must be forwarded as expeditiously as possible to the Commission for the Blind and Visually Handicapped. The commission must make the determination of visual status. Notification will be returned to the agency.

 

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SubPart 360-6 - ENTITLEMENT TO MEDICAL ASSISTANCE

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Effective Date: 
Wednesday, May 7, 2014

Section 360-6.1 - Introduction.

Section 360-6.1 Introduction. This Subpart contains:

(a) the steps to be taken by the social services district after finding an applicant eligible for MA;

(b) a description of the MA identification card to be used in obtaining MA care and services;

(c) the right of a recipient to choose a qualified provider of care and services;

(d) a description of where care and services may be provided; and

(e) restrictions of recipient utilization of care and services.

 

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Section 360-6.2 - Authorization for MA.

Section 360-6.2 Authorization for MA. (a) When a social services district finds an applicant eligible, it will prepare an authorization for MA for the applicant and eligible applying members of the applicant's household. No initial authorization may be effective for more than one year from the date of application. No reauthorization will be effective for more than one year.

(b) Identification cards.

(1) The department will issue an MA identification card to every MA recipient with the exception of:

(i) persons residing in residential health care facilities licensed pursuant to Article 28 of the Public Health Law;

(ii) persons residing in developmental centers operated by the Office of Mental Retardation and Development Disabilities;

(iii) persons residing in psychiatric centers operated by the Office of Mental Health;

(iv) persons residing in residential treatment facilities required to have an operating certificate issued by the Commissioner of Mental Health pursuant to section 31.02(a)(4) of the Mental Hygiene Law; and

(v) foster care children placed with authorized child care agencies, as defined in subdivision 10 of section 371 of the Social Services Law, that are
receiving MA per diem payments.

(2) An identification card issued pursuant to paragraph (1) of this subdivision will contain a photo image unless the MA recipient is:

(i) a recipient of benefits under the Supplemental Security Income program;

(ii) a child under the age of 21 living with a caretaker relative, foster parent or guardian;

(iii) a person who applies at a location authorized by the department other than a social services district office, until the district's next contact with
the person or the first time MA eligibility is recertified, whichever is earlier;

(iv) a person who is confined to his or her home due to an illness or injury, including such persons who are receiving personal care, home health care, or long term home health care services, for the period of such confinement;

(v) a foster child placed with an authorized child care agency, as defined in subdivision 10 of section 371 of the Social Services Law, who is not receiving MA per diem payments;

(vi) a person residing in a facility or institution required to have an operating certificate issued by the Commissioner of Mental Retardation and
Development Disabilities pursuant to Article 16 of the Mental Hygiene Law;

(vii) a person residing in a residential facility, residential care center for adults, or in an institution operated by the Commissioner of Mental Health
pursuant to Article 31 of the Mental Hygiene Law;

(viii) a person whose MA eligibility is determined by the department pursuant to section 365 of the Social Services Law;

(ix) a person receiving MA services through the Office of Mental Retardation and Developmental Disabilities Home and Community Based Services (HCBS) waiver; and

(x) at the option of the social services district, a person who is over 18 years of age but less than 21 years of age and who is not living with a
caretaker relative, foster parent or guardian.

(3) If the authorization for MA is limited to a specific care or service, an MA identification card will not be issued.

(4) A recipient must present the MA identification card or a department approved equivalent to the MA provider before receiving medical services or
supplies.

(5) If the authorization for MA is limited because of utilization thresholds or improper use, the MA provider will be informed of the limitations when he/she verifies the recipient's MA eligibility.

(6) The social services district may make provisions for obtaining surrender of the MA identification card when a recipient is no longer eligible for MA.

(c) An initial authorization will be made effective for inpatient and outpatient care and services provided to a recipient during the three month period preceding the month of application for MA, if the recipient was eligible in the month in which the care and services were provided. An authorization can never be issued for care or services provided prior to this three-month period.

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Effective Date: 
Wednesday, July 26, 2000

Section 360-6.3 - Free choice by recipient guaranteed.

360-6.3 Free choice by recipient guaranteed. (a) Once authorized, MA recipients are entitled to obtain MA care and services from any provider enrolled in the MA program who is both qualified and agrees to provide the care and services. Exceptions to this provision are found in section 360-6.4 of this Subpart.

(b) (1) A social services district must offer to persons eligible for MA the option of membership in any health maintenance organization or other entity which offers comprehensive health services plans to persons residing within the district. This option must be provided unless the district is granted a waiver by the commissioner on the grounds that the organization or entity is not geographically accessible to eligible recipients who reside within the district, the capitation rate is above the expected average fee-for-service cost within the district, or the entity refuses to enter into a contract with the district.

(c) A social services district must offer to eligible recipients the option of membership in the voluntary medical care coordinator program provided for in section 360-6.8 of this Part. This option must be provided unless a participating provider is not reasonably accessible to eligible recipients who reside within the district.

(2) Persons who, prior to becoming eligible for MA, are enrolled in a health maintenance organization or other entity offering a comprehensive health services plan must be offered the option of continuing that enrollment.

 

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Section 360-6.4 - Restriction of recipient access to services (recipient restriction program)

360-6.4 Restriction of recipient access to services (recipient restriction program). The social services district and the department may restrict a recipient's access to MA care and services if, upon review, it is found that the recipient has received duplicative, excessive, contraindicated or conflicting health care services, drugs, or supplies. In such cases, the social services district and the department may require that the recipient access specific types of medical care and services through a designated primary provider or providers. The State medical review team (SMRT) designated by the department performs recipient utilization reviews and identifies candidates for the recipient restriction program.

(a) Definitions. When used in this section:

(1) Good cause for a restricted recipient to request a change of primary provider means the existence of one or more of the following circumstances:

(i) the provider no longer wishes to be a primary provider for the recipient; or

(ii) the provider has closed his/her office or pharmacy, or moved to a location not convenient to the recipient; or

(iii) the provider has been suspended or disqualified from participation in the MA program; or

(iv) the provider is a pharmacist and/or a durable medical equipment (DME) dealer who cannot stock an item for which the recipient has a legitimate prescription or fiscal order; or

(v) the recipient has moved; or

(vi) other circumstances exist that make it necessary to change providers.

(2) Primary provider is a health care provider enrolled in the MA program who has agreed to oversee the health care needs of the restricted recipient. The primary provider will provide and/or direct all medically necessary care and services for which the recipient is eligible, within the provider's category of service or expertise. Primary provider includes physicians, clinics, inpatient hospitals, pharmacies, podiatrists, DME dealers, dentists, and dental clinics.

(3) Recipient is a person who is receiving or who has received MA benefits within the preceding six months, including both current and former recipients.

(4) Recipient information packet (RIP) is the utilization review summary prepared by the SMRT documenting the reason(s) for a recommended restriction. It will include a summary pharmacology assessment prepared by the pharmacist documenting misuse of pharmacy and DME services and summary medical assessments prepared by the registered professional nurse documenting misuse of health care services. A physician must sign the RIP, indicating review and approval of the restriction recommendation.

(5) Restriction is an administrative action limiting an MA recipient's access to specific types of medical care and services through a designated primary provider(s).

(6) SMRT means a team consisting of a registered nurse, a pharmacist and a physician, all of whom are licensed to practice by the State, who act for the department to:

(i) analyze recipient use of medical care and services under the MA program;

(ii) make recommendations concerning restrictions on recipient use; and

(iii) prepare recipient information packets.

(b) Recipient restriction. An MA recipient whose use of a category of MA care or service fulfills one or more of the conditions for restriction specified in subdivision (d) of this section may be recommended by the SMRT to the social services district for restriction to a primary provider in that category. A recipient recommended by the SMRT for restriction to a primary provider in a category of MA care or service other than physician or clinic also may be recommended for restriction to a primary physician or primary clinic if such additional restriction would more effectively control abuse or misuse of MA care, services, drugs, supplies, or appliances. A recipient whose use of hospital emergency room services fulfills the condition for restriction specified in paragraph (5) of subdivision (d) of this section may be recommended by the SMRT to the social services district for restriction to a primary physician or primary clinic; such a restriction will not apply to emergency services furnished to the recipient. A primary provider is responsible for providing MA care or services to a restricted recipient as follows:

(1) A primary physician or primary clinic is responsible for providing all medical care to the restricted recipient, either directly or through referral of such recipient to another medical provider for appropriate services. A primary physician or primary clinic providing medical care for a restricted recipient who also is restricted to a primary inpatient hospital must have admitting privileges to or a professional affiliation with such primary inpatient hospital. A primary physician will receive a management fee for the coordination and management of a restricted recipient's care. Such management fee will be in the amount of $5 for each month the physician acts as primary physical for a restricted recipient.

(2) A primary inpatient hospital is responsible for providing all non-emergency inpatient services to the restricted recipient except for services provided pursuant to an authorized referral. A recipient who is restricted to a primary inpatient hospital also must be restricted to a primary physician or primary clinic.

(3) A primary pharmacy is responsible for providing all necessary drugs and pharmaceutical supplies to the restricted recipient. The primary pharmacy must institute and maintain a current patient profile for the restricted recipient. Such profile must contain, at a minimum: the identity of the prescriber of the drugs and supplies; the strength, quantity and dosage regimen of any drugs; and the dates of service for all drugs and supplies dispensed. The profile must be made readily accessible to the department and its agents.

(4) A primary dentist or primary dental clinic is responsible for providing or directing the provision of all dental care for the restricted recipient.

(5) A primary podiatrist is responsible for providing or directing the provision of all podiatric care for the restricted recipient.

(6) A primary DME dealer is responsible for providing all necessary medical supplies and appliances to the restricted recipient and for repairing and adjusting such appliances.

(7) A primary physician, primary clinic, primary dentist or primary dental clinic is responsible for ordering the following services for the restricted recipient:

(i) transportation services; if the recipient is restricted to a primary physician or primary clinic and a primary dentist or primary dental clinic, the primary physician or primary clinic will be the only allowed orderer of transportation services;

(ii) laboratory services;

(iii) DME services; if the recipient also is restricted to a primary DME dealer, that provider will be the only allowed dispenser of DME services; and

(iv) pharmacy services; if the recipient also is restricted to a primary pharmacy, that provider will be the only allowed dispenser of pharmacy services.

(8) A primary physician or primary clinic is responsible for ordering inpatient hospital services for a restricted recipient who also is restricted to a primary inpatient hospital.

(c) Responsibilities of the SMRT. The professional judgment of the SMRT is applied to each case review. Use of professional judgment includes, but is not limited to:

(1) identifying potential hazards to the health of the recipient;

(2) identifying instances in which the misuse of services appears to be caused by the provider. In such instances, the SMRT will refer the provider to the appropriate agency for quality of care review and/or administrative or criminal action. The SMRT will not recommend that the recipient be restricted;

(3) identifying instances where the recipient may have met one of the conditions of restriction, but it appears to have been an isolated occurrence, or there appears to have been a legitimate reason for the use cited. In these instances, the SMRT will not recommend that the recipient be restricted; and

(4) recommending the type of restriction that will control the misuse most effectively.

(d) Conditions for restriction. Restrictions will be recommended to the social services district if a recipient displays a pattern of receiving one or more of the following:

(1) Excessive drugs, supplies or appliances. The recipient has received more of a drug, medical supply or appliance in a specified time period than is necessary, according to acceptable medical practice.

(2) Duplicative drugs, supplies or appliances. The recipient has received two or more similarly acting drugs in an overlapping time frame or has received duplicative supplies or appliances. The drugs, if taken together, may result in harmful drug interaction(s) or adverse reaction(s). Duplicative supplies and appliances, while not harmful, have no medical indication and are therefore unwarranted.

(3) Duplicative health care services. The recipient has received health care services from two or more providers for the same or similar conditions in an overlapping time frame. Health care services include, but are not limited to, physician, clinic, pharmacy, dental, podiatry and DME services.

(4) Contraindicated care or conflicting care. The recipient has received drugs, supplies or appliances and/or health care services which may be inadvisable in the presence of certain medical conditions or which conflict with care being provided or ordered by another provider.

(5) Unnecessary hospital emergency room services. The recipient has received services in a hospital emergency room for a condition which does not require emergency care or treatment.

(6) Excessive inpatient hospital services. The recipient has received multiple inpatient hospital discharges for the same or similar conditions which are more than necessary, according to acceptable medical practice, including but not limited to multiple inpatient hospital discharges against medical advice. For purposes of this paragraph, discharge against medical advice means discontinuance by a recipient of inpatient hospital services contrary to the advice of the attending physician.

(7) Abusive practices by recipients.

(i) The following practices engaged in by an MA recipient are abusive practices which warrant restriction of such recipient to an appropriate type(s) of restriction:

(a) a recipient uses or permits an MA identification card to be used to obtain services for an unauthorized person;

(b) a recipient presents a forged or altered prescription or fiscal order to an enrolled MA provider to obtain supplies, drugs or services under the MA Program;

(c) a recipient is in possession of two or more MA identification cards which represent two or more MA cases; or

(d) a recipient sells or trades, or attempts to sell or trade, drugs or supplies acquired with an MA identification card.

(ii) When an MA recipient engages in an abusive practice identified in subparagraph (i) of this paragraph, a restriction may be imposed on the recipient for all eligible categories of services or only for those categories of services deemed appropriate by the SMRT.

(iii) The imposition of a restriction under this paragraph does not limit the taking by a social services official, district attorney or other prosecuting official of any other action authorized under law with respect to an act which constitutes a violation of the Social Services Law or Penal Law.

(e) Recipient's rights. (1) Selection of primary provider. The social services district, in consultation with the department, must either designate a primary provider for a restricted recipient or afford the recipient a limited choice of primary providers for the type of services that are to be restricted. If the recipient fails to choose a primary provider when asked to do so, the social services district must designate a single provider in the restriction category for the recipient. A recipient may request a change of primary provider every three months, or at an earlier time for good cause.

(2) Recipient notification. A notice of intent to restrict must be sent to the recipient. The notice must conform with the requirements of Part 358 of this Title. The notice must include the following information:

(i) the date the restriction will begin;

(ii) the effect and scope of the restriction;

(iii) the reason for the restriction;

(iv) the recipient's right to a fair hearing;

(v) instructions for requesting a fair hearing including the right to receive aid continuing if the request is made before the effective date of the intended action. Part 358 of this Title contains the provisions on instructions for requesting a fair hearing;

(vi) the right of a social services district to designate a primary provider for recipient;

(vii) the right of the recipient to select a primary provider within two weeks of the date of the notice of intent to restrict, if the social services district affords the recipient a limited choice of primary providers;

(viii) the right of the recipient to request a change of primary provider every three months, or at an earlier time for good cause;

(ix) the right to a conference with a social services district person to discuss the reason for and effect of the intended restriction;

(x) the right of the recipient to explain and present documentation, either at a conference or by submission, showing the medical necessity of any services cited as misused in the RIP;

(xi) the name and telephone number of the person to contact to arrange a conference;

(xii) the fact that a conference does not suspend the effective date listed on the notice of intent to restrict;

(xiii) the fact that the conference does not take the place of or abridge the recipient's right to a fair hearing;

(xiv) the right of the recipient to examine his/her case record; and

(xv) the right of the recipient to examine records maintained by the social services district which can identify MA services paid for on behalf of the recipient. This information is generally referred to as "claim detail" or "recipient profile" information.

(f) Social services district responsibilities. (1) Timeliness. The social services district must begin to process a restriction recommendation and contact the recipient within 30 days of receipt of the SMRT's recommendation to restrict.

(2) Reversal, change, or non-implementation of restriction by the social services district. The social services district may direct not to follow a restriction recommendation after a conference or upon receipt of additional information only in the following situations:

(i) Administrative reasons. (a) the recipient's case is closed for more than three months from receipt of recommendation;

(b) the recipient is institutionalized;

(c) the social services district cannot locate a primary provider of one type to accept responsibility for the recipient and has to substitute another type of provider for example, physician for clinic provider; or

(d) the recipient participates in another case management or managed care type program authorized by the department which the social services district believes will benefit the recipient more.

(ii) Medical reasons. The recipient can demonstrate a medical necessity for the services received. If, after a conference with the recipient or receipt of additional information, the social services district decides not to follow the SMRT's recommendation for medical reasons, the steps below must be followed:

(a) the recipient must present the RIP summary to an appropriate provider(s) listed in the summary. The provider(s) must submit a statement acknowledging full awareness of all the services, drugs, and supplies listed in the RIP. The provider(s) must explain why the services, drugs and supplies are medically necessary;

(b) the social services district must contact such provider(s) who must submit a statement to verify that he/she saw the RIP summary and that the information on the statement is accurate;

(c) the social services district medical director or a consulting physician having no involvement in the case must sign the case decision not to follow the SMRT's recommendation for medical reasons; and

(d) documentation and a summary must be forwarded to the department within 30 days of the date on which the decision not to follow the recommended restriction is made.

(g) Provider cooperation. The social services district must obtain an agreement from the primary provider that he/she will act as a primary provider. A primary provider must be given written confirmation of the recipient's restriction. Such confirmation must include the following:

(1) the effective date of the restriction;

(2) restriction limitations; and

(3) provisions for handling referrals (not applicable for pharmacy or other ordered service restrictions).

(h) Length of restriction. (1) An initial restriction period will be for 24 consecutive months. After the initial period, the department will determine if the restriction should be continued. A second restriction period will be for three years. Any additional restriction periods will be for six years. If a restriction is to be continued or reinstated, the social services district must notify the recipient by sending a new letter of intent. The required content of the notice of intent is set forth in paragraph (2) of subdivision (e) of this section.

(2) Initial and additional restriction periods must be computed without regard to eligibility for, or receipt of, MA benefits. All periods of ineligibility or voluntary discontinuance of receipt of benefits must be counted in determining the length of restriction. Recipients who do not remain eligible for benefits or who do not continue to receive them, as well as those who are not receiving benefits at the time of the imposition of the restriction, will be treated similarly to those who remain eligible and continue to receive benefits. (For example, a recipient who becomes ineligible for benefits prior to the effective date of the restriction period and, upon subsequent reapplication for or redetermination of eligibility, regains eligibility within the restriction period will be eligible for benefits only in accordance with the restriction previously imposed.)

(i) Rereview for compliance with restriction. The department will monitor the recipient's compliance with a restriction and determine whether an additional restriction period is appropriate. The department will use evidence of MA identification card alterations, services received inappropriately from non-primary providers and other improper actions as the basis for an additional administrative restriction for other than medical reasons. A decision not to continue a restriction will in no way preclude any subsequent decisions to restrict for medical reasons. A recipient restricted for an additional period for non-compliance will have the same rights and is entitled to all appropriate notices informing his/her of the proposed action. These rights and notices are specified in Part 358 of this Title and subdivision (e) of this section.

 

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Section 360-6.5 - Fair hearing requirements in utilization review cases.

360-6.5 Fair hearing requirements in utilization review cases. When a utilization review committee determines that MA payments should be reduced or discontinued, the following steps must be taken:

(a) If the recipient is in a long-term care facility (a skilled nursing facility, intermediate care facility or mental hospital) or is a chronic care patient in a general hospital facility:

(1) The recipient, his/her representative, or an appropriate relative must be notified of the action in writing by the utilization review committee. The notice must be notified of the action in writing by the utilization review committee. The notice must be both timely and adequate as defined in Part 358 of this Title. The notice and action must be consistent with both State and Federal requirements on utilization review.

(2) If the recipient requests a fair hearing before the effective date of the action, payment for the recipient's care in a long-term care facility or for long-term care in a general hospital will be continued until the fair hearing decision is rendered.

(b) If the recipient is in a general hospital, but not receiving chronic care services:

(1) The recipient, his/her representative, or an appropriate relative must be notified of the action in writing by the utilization review committee. The notice must be adequate, as defined in Part 358 of this Title. The notice and action must be consistent with both State and Federal requirements on utilization review.

(2) MA payments on behalf of the recipient will be terminated on the effective date of the utilization review committee determination.

(3) MA payments will not be continued on behalf of the recipient if the recipient requests a fair hearing to contest a determination that hospitalization is no longer necessary.

(c) All provisions of Part 358 of this Title which are not inconsistent with subdivisions (a) and (b) of this section apply to utilization review committee determinations.

 

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Section 360-6.6 - Where care and services may be provided.

360-6.6 Where care and services may be provided. Medical care and services under the MA program may be provided to a recipient residing in his/her own home or in an approved medical institution or facility.

(a) A recipient's home may be a home where he/she receives room and board, a family home or boarding home, an approved nonprofit institution for child care, a licensed public child care institution which accommodates no more than 25 children and is not operated primarily for delinquent children or family-type group, or a family-type, family care or residential care facility certified by the department or an office of the State Department of Mental Hygiene.

(b) An approved medical institution or facility includes the following when operated according to the Public Health Law or other applicable law:

(1) a private proprietary or nonprofit nursing home;

(2) the approved infirmary section of a home for the aged;

(3) a public home infirmary or other similar public facility for the chronically ill;

(4) an intermediate care facility;

(5) a facility or part of a facility for the treatment of narcotic addiction which is operated pursuant to the provisions of article 23 of the Mental Hygiene Law as long as Federal aid is available;

(6) an inpatient alcoholism facility;

(7) an approved hospital, nursing home, or intermediate care facility section of a public institution operated for the care of the mentally disabled;

(8) a State hospital for the mentally disabled operated by the State Department of Mental Hygiene; and

(9) a hospital other than one caring primarily for the mentally disabled.

(c) Medical care and services may be provided to a recipient in a general or chronic disease hospital, regardless of the disease diagnosed.

(d) Medical care and services will be provided to eligible veterans and their dependents in those parts of the New York State Home for Veterans and their Dependents at Oxford which have been approved pursuant to law as either a nursing home or an intermediate care facility. Such recipients will have care and services provided in a hospital while on release from that home for the purpose of receiving care in such hospital.

(e) Medical care and services will be provided to an eligible person receiving inpatient psychiatric services in an institution used primarily for the care of the mentally ill as follows:

(1) For an eligible person under 21 years of age, such care and services must conform to Federal and State standards. A team, consisting of physicians and other qualified personnel, must determine that the care and services are necessary on an inpatient basis and can reasonably be expected to improve the condition being treated so that such care and services will no longer be necessary. If a person attains the age of 21 during the course of hospitalization, such services may continue until he/she reaches the age of 22.

(2) For an eligible person 65 years of age or over, such care and services must conform to Federal and State standards.

(3) Persons receiving inpatient, psychiatric services in an institution primarily for the care of the mentally ill who fall outside the categories in paragraphs (1) and (2) of this subdivision are ineligible for MA.

(f) MA will be provided to an eligible person who enters or leaves a public institution only for the part of the month in which the person is not residing in the institution.

 

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Section 360-6.7 - REPEALED

REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-6.8 - Medical care coordinator program (MCCP).

Section 360-6.8 Medical care coordinator program (MCCP).

(a) Policy. Effective July l, 1992, a recipient who is eligible for medical assistance (MA) solely as a result of being eligible for or in receipt of Home Relief (HR) and who is at least 21 years of age but under the age of 65 (MA/HR recipient), may receive certain MA services only if the recipient is enrolled in a health maintenance organization or other entity which provides comprehensive health services, a managed care program, a primary provider program, or a voluntary medical care coordinator program (MCCP).

(b) Scope. This section defines the MCCP; specifies the rights of participating recipients; establishes the qualifications and responsibilities of participating primary physicians, diagnostic and treatment centers, hospital out-patient departments and pharmacies in providing and coordinating medical care, services and supplies for participating recipients; and sets forth the responsibilities of social services districts in administering the MCCP.

(c) Definitions. As used in this section, unless expressly stated otherwise or unless the context of the subject matter requires a different interpretation:

(1) MCCP means a program in which an MA/HR recipient voluntarily enrolls with a primary physician, diagnostic and treatment center or hospital out-patient department and a primary pharmacy which will provide or refer the MA recipient to medically necessary services and will further coordinate the use of medical services to assure that the recipient receives appropriate medical care, services and supplies and that MA is provided in an appropriate and cost-effective manner.

(2) MA/HR recipient means a person who is eligible for MA solely as a result of being eligible for or in receipt of HR and who is at least 21 years of age but under the age of 65.

(3) Primary provider means a physician, diagnostic and treatment center, or hospital out-patient department enrolled in the MA program which has agreed to coordinate the health care of an MA/HR recipient and to provide and/or direct all medically necessary care, services and supplies for which the MA/HR recipient is eligible.

(4) Primary pharmacy means a pharmacy enrolled in the MA program which has agreed to provide all drugs and pharmaceutical supplies ordered for an MA/HR recipient enrolled in the MCCP.

(d) Recipient participation. participation by an MA/HR recipient in the MCCP is voluntary.

(e) Recipient responsibilities.

(1) An MA/HR recipient who wishes to participate in the MCCP must obtain a copy of the provider selection form from his or her social services district, complete the form and return it to the social services district.

(2) The MA/HR recipient must identify on such form his or her choice of primary physician, diagnostic and treatment center or hospital outpatient department, and his or her choice of primary pharmacy, and obtain agreement from the providers that they will be the primary provider and primary pharmacy. An identified provider agrees to be a primary provider or primary pharmacy for an MA/HR recipient by signing a selection form.

(3) An MA/HR recipient who participates in the MCCP may change his or her primary provider or primary pharmacy by completing a provider change form furnished by the social services district if another primary provider or primary pharmacy satisfactory to the recipient agrees to act as the primary provider or primary pharmacy.

(4) An MA/HR recipient who participates in the MCCP may withdraw from the MCCP at any time by completing a recipient withdrawal form furnished by the social services district.

(5) If an MA/HR recipient volunteers to participate in the MCCP but no primary provider or primary pharmacy is sufficiently accessible or no primary provider or primary pharmacy which is sufficiently accessible agrees to be the recipient's primary provider or primary pharmacy, the recipient may receive the MA services which are available to participating MA/HR recipients without enrolling in the MCCP. The recipient will continue to receive these services until a provider or pharmacy affiliated with a health maintenance organization or other entity which provides comprehensive health services, a managed care program, a primary provider program, or the MCCP is sufficiently accessible and agrees to provide medical care or pharmacy services to the recipient, at which time the MA/HR recipient must enroll in such program in order to continue to receive such MA services.

(f) Provider responsibilities.

(1) A primary provider or primary pharmacy must furnish written confirmation to a social services district, prior to acting as a primary provider or primary pharmacy, of the provider's agreement to act as primary provider or primary pharmacy and to comply with all requirements of this section. A provider confirms such agreement by signing the provider selection form presented by the MA/HR recipient.

(2) A primary provider or primary pharmacy may act as a primary provider or primary pharmacy with respect to a particular MA/HR recipient only on and after the effective date of the recipient's enrollment in the MCCP. The social services district will inform the primary provider or primary pharmacy in writing of the recipient's enrollment in the MCCP.

(3) A primary provider is responsible for providing, either directly or through referral to another qualified MA provider, all MA covered care, services and supplies to an MA/HR recipient enrolled in the MCCP. The primary provider is responsible for ordering or directing the following services for an enrolled MA/HR recipient:

(i) laboratory services;

(ii) durable medical equipment;

(iii) pharmacy services; and

(iv) medically necessary and appropriate non-emergency transportation services.

(4) A physician acting as primary provider for an enrolled MA/HR recipient will receive a monthly management fee of $10.00 for managing and coordinating the care of each MA/HR recipient for which the physician is the primary provider.

(5) A pharmacy acting as primary pharmacy must institute and maintain a current patient profile for each enrolled MA/HR recipient. A current patient profile must contain: the identity of the prescriber of a drug or pharmaceutical supply; the strength, quantity and dosage regimen of a drug; and the date of service for the dispensing of a drug or pharmaceutical supply. A current patient profile must be readily accessible to the department and its designated agents upon request. The primary pharmacy also must adhere to all drug utilization review requirements under the MA program.

(g) Social services district responsibilities.

(1) Each social services district will be primarily responsible for administration of the MCCP.

(2) Each social services district must take actions necessary for the efficient and effective functioning of the MCCP, including:

(i) assisting MA/HR recipients to enroll in the MCCP;

(ii) assisting enrolled MA/HR recipients to choose primary providers and primary pharmacies;

(iii) processing the provider selection forms promptly and determining the effective dates of recipients enrollment in the MCCP;

(iv) providing written notice to MA/HR recipients and identified primary providers and primary pharmacies confirming the MA/HR recipients' effective dates of enrollment in the MCCP;

(v) processing primary provider and primary pharmacy change forms and recipient withdrawal forms promptly and determining the effective dates of changes or withdrawals from the MCCP;

(vi) providing to MA/HR recipients and the primary providers and primary pharmacies a written notices confirming the effective dates of MA/HR recipients' participation in or withdrawals from the MCCP and providing to MA/HR recipients a list of the MA services which the recipients will become ineligible to receive upon the effective dates of withdrawals unless the MA/HR recipients have enrolled in other managed care programs;

(vii) determining whether available primary providers are suffi ciently accessible to MA/HR recipients so that services can be reasonably provided to recipients;

(viii) advising the department when recipients have problems obtaining access to primary providers or primary pharmacies; and

(ix) entering necessary data into WMS to support timely implementation of the MCCP and recipients' enrollment, changes in primary providers or primary pharmacies, or withdrawals from MCCP.

 

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SubPart 360-7 - PAYMENT FOR MA SERVICES

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Section 360-7.1 - Introduction.

Section 360-7.1 Introduction. This Subpart specifies:

(a) when MA will pay for covered medical care and services;

(b) who may receive MA payment for providing covered medical care and services;

(c) that recipients must cooperate in obtaining payments from third parties; and

(d) that MA may pay for certain insurance premiums, coinsurance and deductibles, and for reserved beds in medical institutions.

 

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Section 360-7.2 - MA program as payment source of last resort.

360-7.2 MA program as payment source of last resort. Where a third party, such as a health insurer or responsible person, has a legal liability to pay for MA-covered services on behalf of a recipient, the department or social services district will pay only the amount by which the MA reimbursement rate for the services exceeds the amount of the third party liability. The department or social services district will also pay if the third party payment will not be made within a reasonable time. The department or social services district will seek reimbursement for any payments for care and services it makes for which a third party is legally responsible. They will seek reimbursement to the extent of the third party's legal liability unless the amount reasonably expected to be recovered is less than the cost of making the recovery.

 

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Section 360-7.3 - Use of health, hospital or accident insurance.

360-7.3 Use of health, hospital or accident insurance. (a) Definitions used in this section.

(1) Insurance providing full coverage. A recipient's insurance is providing full coverage when the recipient's care is paid for under the insurance contract without the payment of any coinsurance amount, deductible, or Medicare.

(2) Insurance providing partial coverage. A recipient's insurance is providing partial coverage when payment for his/her care under the insurance contract is subject to payment of a coinsurance amount, deductible, or Medicare.

(3) Indemnity insurance coverage is any insurance benefit a recipient receives because of accident or injury. Examples of this type of insurance are automobile and liability insurance and workers' compensation benefits.

(4) Coinsurance amount or deductible are amounts an insurance beneficiary must pay when he/she receives care or services.

(b) A recipient must use health, hospital or accident insurance benefits to the fullest extent in meeting his/her medical needs.

(1) Using insurance benefits to pay for care provided to a recipient by a medical institution:

(i) Blue Cross, Government Health Insurance and other types of insurance (other than indemnity insurance).

(a) When a recipient's care in a medical institution is covered in full by insurance, the social services district will only make payments for items of care not covered by the insurance contract that are the recipient's responsibility to pay. Payments which the social services district makes for a recipient in this way will be at rates set by the appropriate official. The total payment by the social services district for any item of service must be limited to the amount by which the rate of payment approved by the State Director of the Budget, according to section 2807 of the Public Health Law, exceeds the amount paid by the insurance carrier.

(b) When a recipient's care in a medical institution is partially covered by insurance, the payment by the social services district must be no more than the amount by which the rate of payment for the institution approved by the State Director of the Budget, in accordance with section 2807 of the Public Health Law, exceeds the amount paid by the insurance carrier. The term "partially covered" for the purpose of this clause includes specific and fixed benefits for maternity care.

(ii) Assignment of a recipient's indemnity insurance coverage. The social services district must establish procedures for the proper use of a recipient's indemnity insurance benefits. These procedures must provide for an MA applicant or recipient to assign these benefits to the medical institution providing his/her care or to the social services district. If the procedures provide for assignment of benefits to the social services district, they must include a method for obtaining payment of the benefits to the social services district.

(iii) Situations where the social services district pays the difference between the amount of assigned benefits and the established rate. If a recipient assigns his/her indemnity insurance benefits to the medical institution, the social services district must pay the medical institution the amount by which the rate of payment for the institution approved by the State Director of the Budget, in accordance with section 2807 of the Public Health Law, exceeds the amount paid by the insurance carrier.

(2) Using insurance benefits to pay for care provided to recipients by persons and agencies other than medical institutions.

(i) Blue Shield, Government Health Insurance and other insurance (except indemnity coverage). The social services district must pay the provider of a recipient's medical services the amount by which the fee for the care and services that is set by the social services district exceeds the amount paid by the insurance carrier.

(ii) Assignment of indemnity insurance coverage. The social services district must establish procedures for the proper use of indemnity insurance benefits. These procedures must provide for an applicant or recipient to assign his/her indemnity insurance benefits to the provider of medical services, if the provider will accept such assignment, or to the social services district. If the social services district's procedures provide for assignment of these benefits to the district, they must include the methods for obtaining payment by the social services district.

(iii) If a recipient assigns indemnity insurance benefits to the provider of medical services, the social services district must pay the provider the amount by which the fee established by the district for the service rendered exceeds the amount paid by the insurance carrier. If the indemnity insurance benefit is assigned to the social services district, the provider must be paid the district's established fee for the services the recipient receives.

(3) The social services district staff must obtain from applicants/recipients information about their private health coverage. This information includes insurance coverage which may be available to the applicant/recipient through an absent parent or spouse. If the applicant/recipient is unaware of what coverage is available through an absent parent or spouse, the social services district is responsible for getting the information from either the absent parent or spouse or their employers. The applicant/ recipient must provide the social services district with the name of the insurance carrier, type of coverage, policy number, and amount of the premium payment.

(c) Applicants/recipients must make full use of available medical resources which will provide or pay for medical care, services and supplies.

(1) Children under 21 years of age may be eligible for medical services under the children with physical disabilities program (formerly the physically handicapped children's program), provided for under Title V of Article 25 of the Public Health Law. The social services district must promptly refer the case of a child who may be eligible for this program to the local program medical director. If the local program medical director determines that the child is medically eligible, MA-covered services must be provided in accordance with the plan of care approved by the local program medical director. Once the social services district official has been notified that the child is medically eligible, the child's financial eligibility for MA must be determined, in accordance with the agreement between the State Department of Health and the State Department of Social Services. If the child is eligible for MA with no parental liability, the medical services must be authorized by the social services district and paid for from MA funds. If the child's parents are required to contribute toward the cost of his/her care under MA eligibility standards, the child's case must be referred to the children with physical disabilities program for payment of the cost of medical services up to the amount of the child's excess income.

(2) The social services district must review any existing support order which has been entered for a recipient's benefit against a spouse or parent. The social services district must petition to amend orders of support to provide that the parent or spouse participate in a family medical insurance plan if one is available through the parent's or spouse's employer.

 

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Section 360-7.4 - Liability of third parties.

360-7.4 Liability of third parties.

(a) (1) When care and services are or may be provided to an applicant/recipient for treatment of injury, disease or disability, the State or social services district will take all reasonable measures to ascertain the legal liability of third parties (including health insurers) to pay for such care and services.

(2) The social services district, when determining or redetermining eligibility , must collect sufficient information to enable the State to pursue claims against such third parties, including all information specifically required by the department.

(3) As a condition of eligibility, an applicant/recipient must cooperate with the State or social services district in identifying third parties who may be liable to pay for care. The applicant/recipient must provide information to assist the State in pursuing such third parties. An applicant/recipient may refuse to cooperate only for good cause.

(4) As a condition of eligibility, an applicant/recipient with the legal capacity to execute an assignment, must assign to the State and social services district any rights against any third party for support (specified as support for medical care by a court or administrative order) and for payment of medical care. The requirement extends to any person with the legal authority to execute an assignment on behalf of an applicant/recipient.

(5) The State or social services district will seek reimbursement for MA when there is a third party legal liability and the expected amount of reimbursement is more than the costs of making the recovery.

(6) Upon furnishing MA to a recipient, the social services district or the department will be subrogated, to the extent of the expenditures by such district or the department, to any rights the recipient may have to medical support or third party reimbursement. For purposes of this section, the term medical support means the right to support for purposes of medical care as specified by court or administrative order. The social services district or the department will issue a written notice of the exercise of subrogation rights to the appropriate party or parties.

(b) A recipient is eligible to receive MA even if he/she has a right of action, suit, claim, counterclaim or demand against a third party for personal injuries suffered, if all other eligibility requirements are met. If the social services district finds that the third party has paid or will pay within a reasonable time, the district will pay only the amount by which the allowable MA claim exceeds the third party liability. If payment will not be made within a reasonable time, the social services district must file a lien covering the cost of such assistance in accordance with section 104-b of the Social Services Law. The recipient will be required to assign to the district the proceeds of such right or demand.

(c) Whenever a social services district authorizes hospital care for the treatment of recipient's personal injuries, it must obtain a satisfaction or discharge of any hospital lien covering such care before or at the time payment to the hospital is made. The district must file the satisfaction or discharge in accordance with the Lien Law.

 

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Section 360-7.5 - Method of payment for medical care

360-7.5 Method of payment for medical care.

(a)(1) Except as provided in paragraphs (2) through (4) of this subdivision, payment by the MA program for services covered under the program which are medically necessary in amount, duration, and scope, will be made to the enrolled MA provider which furnished the services, at the MA rate or fee in effect at the time the services were provided.

(2) Payment may be made to:

(i) a practitioner's employer if the practitioner would be required to do so as a condition of employment;

(ii) the facility in which such services were provided if the facility submits the claim under a contract between a practitioner and the facility; or

(iii) an organization, including a health maintenance organization, which furnishes health care through an organized health care delivery system, if there is a contract between the organization and the practitioner under which the organization bills or receives payment for the services.

(3)(i) Payment may be made to a recipient or the recipient's representative for paid medical bills if:

(a) an erroneous MA eligibility determination is reversed (whether the reversal is due to the social services district discovering its own error or is the result of a fair hearing decision or court order), or the social services district fails to determine MA eligibility within the time periods set forth in section 360-2.4 of this Part; and

(b) the erroneous eligibility determination or the delay in determining eligibility caused the recipient or the recipient's representative to pay for medically necessary services which otherwise would have been paid for by the MA program.

(ii) Payment under this paragraph is not limited to the MA rate or fee in effect at the time the services were provided, but may be made to reimburse the recipient's or the recipient's representative's reasonable out-of-pocket expenditures. In addition, payment under this paragraph may be made with respect to services furnished by a provider who is not enrolled in the MA program, if such provider is otherwise lawfully qualified to provide the services, and had not been excluded or otherwise sanctioned from the MA program under Part 515 of this Title.

(iii) For purposes of subparagraph (ii) of this paragraph, an out-of-pocket expenditure will be considered reasonable if it does not exceed 110 percent of the MA payment rate for the service. If an out-of-pocket expenditure exceeds 110 percent of the MA payment rate, the social services district will determine whether the expenditure is reasonable. In making this determination, the district may consider the prevailing private pay rate in the community at the time services were rendered, and any special circumstances demonstrated by the recipient.

(4) Payment may be made to a recipient or the recipient's representative for paid medical bills for services received during the recipient's retroactive eligibility period, provided that the recipient was eligible in the month in which the services were received, in accordance with the provisions of this paragraph.

(i) For services received during the period beginning on the first day of the third month prior to the month of the MA application and ending on the date the recipient applied for MA, payment can be made without regard to whether the provider of services was enrolled in the MA program. However, if the services were furnished by a provider not enrolled in the MA program, the provider must have been otherwise lawfully qualified to provide such services, and must not have been excluded or otherwise sanctioned from the MA program under Part 515 of this Title. If services were provided when the recipient was temporarily absent from the State, payment will be made if: MA recipients customarily use medical facilities in the other state; or the services were obtained to treat an emergency medical condition resulting from an accident or sudden illness.

(ii) For services received during the period beginning after the date the recipient applied for MA and ending on the date the recipient received his or her MA identification card, payment may be made only if the services were furnished by a provider enrolled in the MA program.

(b) The claim of any provider of medical care, services, or supplies assigned under a power of attorney or otherwise, is invalid and cannot be enforced against a social services district. However, an assignment from a supplier to a governmental agency or entity or an assignment established under a court order is valid.

(c) A provider of medical care, services, or supplies may employ a business agent, such as a billing service or an accounting firm. Such agent may prepare and send bills and receive MA payments in the name of the provider only if the compensation paid to the agent is:

(1) reasonably related to the cost of the services;

(2) unrelated, directly or indirectly, to the dollar amounts billed and collected; and

(3) not dependent on actual collection of payments.

(d) A social services district may use any appropriate organization as a fiscal intermediary to audit and pay for the district's share of the cost of medical care, services and supplies provided to recipients. An appropriate organization is any insurance carrier authorized to conduct audits and make payments to providers who furnish services under Medicare. A social services district must enter into an agreement with the organization that meets the requirements of this provision and other appropriate Federal authorities. The department must approve the agreement before the organization can be used as a fiscal intermediary.

(e) Payment for a recipient's transportation costs will be made to the vendor. If payment cannot be made directly to the vendor, it will be made to the recipient as an administrative expense. When the services of an attendant are essential, payment for the attendant's transportation costs will be made to the vendor. If payment cannot be made directly to the vendor, payment will be made to the attendant as an administrative expense.

(f) Payment for home health aide services will be made in the same manner as payment for any other medical care provided under the MA program.

(g) Payment or part-payment of the premium for personal health insurance covering care and other medical benefits which are authorized under the MA program may be made to the insurance carrier or to another appropriate third party:

(1) on behalf of MA households eligible for ADC, HR or extended MA coverage pursuant to paragraphs (1) and (2) of section 360-3.3(c) of this Part, for cost-effective, employer-sponsored group health insurance benefits. Such premiums will be paid for the benefit of the recipient's spouse and dependent children. Non-employer health insurance will be paid, in part or in
full, when it would reduce the expense of providing MA services;

(2) on behalf of a recipient if the recipient is receiving MA as a patient in a medical facility and all the recipient's nonexempt income
except that expended for the cost of such insurance, is applied to the cost of his/her care; or

(3) on behalf of a recipient or household which is eligible for MA if the full cost of such insurance premiums was not used in calculating financial eligibility and if full or partial payment would reduce the expense of providing MA services.

(h) Payment of the COBRA premiums for COBRA continuation coverage, as defined in paragraph (l) of this subdivision, will be made by the MA program on behalf of a person described in paragraph (2) of this subdivision.

(1) (i) COBRA continuation coverage means health insurance coverage required by Section 10002 of the consolidated omnibus Budget Reconciliation Act of 1985 (Pub. L. No. 99-272) and provided under a group health plan that meets the following requirements:

(a) the group health plan is provided by an employer of 75 or more employees; and

(b) the group health plan is provided pursuant to title XXII of the public Health service Act, section 4980B of the Internal Revenue code of 1986, or title VI of the Employee Retirement Income security Act of 1974.

(ii) COBRA premiums means the applicable premiums imposed with respect to COBRA continuation coverage.

(2) The MA program will pay the COBRA premiums for a person who meets the following requirements:

(i) he or she is entitled to elect COBRA continuation coverage;

(ii) his or her income does not exceed 100 percent of the poverty line, as defined in section 360-1.4(r) of this Part, applicable to a household of the same size as the person's household;

(iii) his or her resources do not exceed twice the maximum amount of resources that a person may have to be eligible for federal Supplemental Security Income (SSI) benefits; and

(iv) the social services district has determined that the savings in MA expenditures resulting from enrolling the person for COBRA continuation coverage are likely to exceed the amount of payments made for the COBRA premiums.

(3) When determining the eligibility of a person for payment of the COBRA premiums under this subdivisor, the social services district must:

(i) use the federal SSI eligibility requirements relating to income and resources; and

(ii) not consider costs that the person or the person's household has incurred for medical or remedial care.

(4) (i) The MA program will pay the COBRA premiums on behalf of a person who has applied to have the program pay for such premiums and who the social services district reasonably expects will meet the eligibility requirements of paragraph (2) of this subdivision but for whom the social services district has not yet received documentation verifying whether the person is eligible
for MA payment of his or her COBRA premiums.

(ii) When the social services district receives such documentation and determines that such person does not meet the eligibility requirements of paragraph (2) of this subdivision:

(a) the MA program's payment of the person's COBRA premiums will terminate;

(b) the person may request a fair hearing pursuant to part 358 of this Title to review the social services district's determination that he or she is ineligible for the MA program's payment of his or her COBRA premiums; however, the person will not be entitled to aid continuing; and

(c) the social services district may request that the person repay the amount of the MA program's payments for his or her COBRA premiums unless a fair hearing decision has held that the social services district's determination was incorrect.

(5) The social services district must notify the person, in writing and on forms required by the department of its determination whether the person is eligible, or continues to be eligible, to have the MA program pay for his or her COBRA premiums. The notice must advise the person of his or her right to request a fair hearing and of any aid continuing rights in accordance with part 358 of this Title.

(i) Payment of health insurance premiums will be made by the MA program on behalf of a person described in paragraph (1) of this subdivision.

(1) The MA program will pay the health insurance premiums for a person who:

(i) has Acquired Immune Deficiency Syndrome (AIDS) or an Human Immune Deficiency Virus (HIV) related illness, as defined by the AIDS Institute of the Department of Health;

(ii) resides in a household whose income does not exceed 185 percent of the poverty line, as defined in section 360-1.4(r) of this Part, applicable to a household of the same size as the person's household;

(iii) (a) is unemployed; participated in the health insurance plan his or her prior employer provided; and is eligible to continue his or her participation in such plan or convert his or her coverage to individual coverage;

(b) is employed; participated in the health insurance plan his or her prior employer provided; is eligible to continue his or her participation in such plan or convert his or her coverage to individual coverage; and is ineligible to participate in the health insurance plan that his or her current employer provides or such employer does not offer a health insurance plan; or

(c) is or was self-employed; maintained health insurance coverage while self-employed; and is eligible to continue his or her participation in such plan or convert his or her coverage to individual coverage; and

(iv) is ineligible for MA.

(2) When determining the eligibility of a person for the payment of his or her health insurance premiums under this subdivision, a social services district must:

(i) use the federal Supplemental Security Income eligibility requirements relating to income; and

(ii) not consider the following:

(a) costs that the person or the person's household has incurred for medical or remedial care; or

(b) resources available to the person or the person's household.

(3)(i) The MA program will pay the health insurance premiums on behalf of a person who has applied to have the program pay for such premiums and who the social services district reasonably expects will meet the eligibility requirements of paragraph (1) of this subdivision but for whom the social services district has not yet received documentation verifyin4 whether the
person is eligible for MA payment of his or her health insurance premiums.

(ii) When the social services district receives such documentation and determines that the person does not meet the eligibility requirements of paragraph (l) of this subdivision:

(a) the MA program's payment under this subdivision of the person's health insurance premiums will terminate;

(b) the person may request a fair hearing pursuant to Part 358 of this Title to review the social services district's determination that he or she is ineligible for the MA program's payment under this subdivision of his or her health insurance premiums; however, the person will not be entitled to aid continuing; and

(c) the social services district may request that the person repay the amount of the MA program's payments for his or her health insurance premiums unless a fair hearing decision has held that the social services district's determination was incorrect.

(4) The social services district must notify the person, in writing and on forms required by the department, of its determination whether the person is eligible, or continues to be eligible, to have the MA program pay for his or her health insurance premiums. The notice must advise the person of his or her right to request a fair hearing and of any aid continuing rights in accordance with Part 358 of this Title.

(j) Payments will be made to the facility, agency or person who provided medical services under the physically handicapped children's program when prior authorization was obtained from the social services district. Services under this program include inpatient hospital care, prosthetic appliance costing more than $40 and prescribed by someone other than a qualified specialist, multiple extractions and dental prosthesis, and other dental care and services. If, during a period for which such care and services have been authorized, the recipient or household becomes ineligible for MA, arrangements must be made with the recipient or household to pay the social services district for the cost of care and services provided during the period of MA ineligibility. In such instances, the social services district will limit accounting division authorization to the care and services for which prior authorization was obtained. If the recipient or household remains ineligible for MA when such care and services are completed, the
case will be closed.

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Section 360-7.6 - Payment for services or supplies.

360-7.6 Payment for services or supplies. (a) For most services, rates of payment are established pursuant to section 367-a of the Social Services Law. They are contained in Subchapter E of this Title. Where rates of payment are not otherwise established, each social services district must set a schedule of rates of payment for services and supplies provided under the MA program. These rates of payment must be set to assure that adequate services and supplies will be provided. Each social services district must require that payment of rates made according to established schedules, including any portion to be paid by the recipient, will constitute full payment for the services or supplies provided to the MA recipient.

(b)(1) Payment for the following medical care, services and supplies provided to a recipient who is eligible for medical assistance (MA) solely as a result of being eligible for or in receipt of Home Relief (HR) and who is at least 21 years of age but under the age of 65 is available only if the recipient is enrolled in a health maintenance organization or other entity which provides comprehensive health services, a managed care program, a primary provider program, or a voluntary medical care coordinator program (MCCP):

(i) home health services;

(ii) personal care;

(iii) physical, speech and occupational therapy;

(iv) transportation;

(v) private duty nursing;

(vi) optometric care;

(vii) audiology services;

(viii) clinical psychology;

(ix) orthotic devices;

(x) sick room supplies; and

(xi) nursing home in-patient care unless the recipient was an in-patient nursing home resident on July 1, 1992.

(2) Payment for in-patient hospital services provided to a recipient who is eligible for MA solely as a result of being eligible for or in receipt of HR and who is at least 21 years of age but under the age of 65 will be limited to 32 days in any consecutive 12-month period unless such services are provided through a program which receives full capitation payments.

 

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Section 360-7.7 - Payments of deductibles and coinsurance under title XVIII of

360-7.7 Payments of deductibles and coinsurance under title XVIII of the Social Security Act (Medicare). (a) The MA program will pay on behalf of qualified Medicare beneficiaries, as defined in subdivision (g) of this section, the full amount of any deductible and coinsurance costs incurred under Part A or B of Title XVIII of the Social Security Act (Medicare).

(1) The MA program will pay the full amount of such deductible and coinsurance costs for care, services or supplies included in the MA program and for care, services or supplies that are included in the MA program.

(2) The MA program will pay the full amount of such deductible and coinsurance costs for qualified Medicare beneficiaries who are otherwise eligible for MA and for qualified Medicare beneficiaries who are not otherwise eligible for MA.

(b) The MA program will pay on behalf of MA recipients who are also eligible for benefits under Part A or B of Title XVIII (Medicare), but who are not qualified Medicare beneficiaries, the full amount of any deductible or coinsurance costs incurred under such part provided that the costs were incurred for care, services and supplies included in the MA program.

(c) Before the MA program will pay any Medicare Part B deductible or coinsurance liability, the MA recipient or qualified Medicare beneficiary must assign to the provider any Part B benefit payment to which he or she is entitled. A provider of a Medicare Part B benefit must accept assignment from such recipient or beneficiary of his or her right to receive the Medicare Part B payment.

(d) A provider of a Medicare Part B benefit must not seek to recover any Medicare Part B deductible or coinsurance amounts from an MA recipient or qualified Medicare beneficiary.

(e) To be paid for transportation services that are not paid through the Medicaid Management Information System, a provider must submit to the social services district bills for deductible and coinsurance amounts and the explanations of benefits form issued by the Medicare carrier. A provider does not have to submit the explanation of benefits form to a district which can obtain this information from the Medicare Part B fiscal agent's computer files. A district must apply Medicare Part B benefits before making MA payments for claims.

(f) Reimbursement is not available under the MA program for services or supplies furnished pursuant to Title XVIII of the Social Security Act (Medicare) if:

(1) the provisions of such title or the regulations promulgated to implement such title preclude a provider of such services or supplies from charging a Medicare beneficiary for the cost of the supplies or services provided; or

(2) the provider agrees, under the terms of a Medicare provider agreement, not to charge an individual for the cost of services or supplies.

(g) Qualified Medicare beneficiaries. (1) As used in this section and section 360-7.8 of this Subpart, the term qualified Medicare beneficiary means a person:

(i) who is entitled to hospital insurance benefits under Medicare Part A;

(ii) whose income does not exceed 100 percent of the poverty line, as defined in section 360-1.4 of this Part, applicable to a family of the size involved;

(iii) whose resources do not exceed twice the maximum amount of resources that the person may have to be eligible for Supplemental Security Income benefits; and

(iv) who meets the non-financial eligibility requirements contained in Subpart 360-3 of this Part.

(h) Qualified disabled and working individuals. As used in this section and section 360-7.8 of this Subpart, the term qualified disabled and working individual means a person who is not otherwise eligible for medical assistance and:

(1) who is entitled to hospital insurance benefits under section 1818A of Part A of Title XVIII of the Social Security Act;

(2) whose income does not exceed 200 percent of the official Federal poverty line applicable to the person's family size; and

(3) whose resources do not exceed twice the maximum amount of resources that an individual or a couple, in the case of a married individual, may have and obtain Federal supplemental security income benefits under Title XVI of the Federal Social Security Act, as determined for purposes of that program.

(i) Specified low income Medicare beneficiaries. As used in this section and section 360-7.8 of this Subpart, the term specified low income Medicare beneficiary means a person:

(1) who would be a qualified Medicare beneficiary as defined in 360-7.7(g) of this Subpart except that the person's income exceeds the regulatory income requirements; and

(2) whose income is greater than 100 percent of the official federal poverty line applicable to the person's family size but, in calendar years 1993 and 1994, is less than 110 percent of such poverty line and, in calendar years beginning in 1995, is less than 120 percent of such poverty line.

 

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Section 360-7.8 - Payments of premiums under Title XVIII of the Social Security

360-7.8 Payments of premiums under Title XVIII of the Social Security Act (Medicare). (a) Payment of Medicare part A monthly premiums will be made by the MA program for qualified Medicare beneficiaries and qualified disabled and working individuals, as defined in section 360-7.7 of this Subpart. Payment of Medicare Part A monthly premiums for a qualified Medicare beneficiary will begin with the month following the month he or she applies of MA payment of these amounts.

(b) Payment of Medicare part B premiums will be made by the MA program if a recipient is:

(1) enrolled in a voluntary insurance program under Medicare part B;

(2) receiving cash grants as an eligible recipient of public assistance;

(3) receiving chronic care in a medical institution;

(4) receiving care in a public home; or

(5) a qualified Medicare beneficiary, as defined in section 360-7.7(g) of this Subpart. The MA program will pay the Medicare part B monthly premiums for a qualified Medicare beneficiary beginning with the month following the month he or she applies for MA payment of these amounts.

(6) a specified low income Medicare beneficiary as defined in section 360-7.7(i) of this Subpart. The MA program will pay the Medicare Part B monthly premiums for a specified low income Medicare beneficiary.

(c) Method of payment. (1) The State will pay Medicare part B premiums initially for recipients of cash grants. The social services district will be charged periodically for its proportionate share of the premiums. The charge to a social services district cannot exceed 50 percent of the cost of such premium after crediting any available Federal reimbursement.

(2) The social services district will pay the premiums for recipients in chronic care in a medical institution or care in a public home. Each social services district must claim State reimbursement for the cost of the premiums that it paid initially.

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Section 360-7.9 - Special needs of MA recipients subject to chronic care budget

360-7.9 Special needs of MA recipients subject to chronic care budgeting. A recipient subject to chronic care budgeting in a medical facility or an intermediate care facility will receive a grant to satisfy unmet needs and expenses if his/her monthly income is less than the amount allowed by the department for incidental needs and expenses. The grant will be from the category of assistance for which he/she is eligible.

 

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Section 360-7.10 - Reserved

Reserved

Section 360-7.11 - Medical assistance liens and recoveries.

360-7.11 Medical assistance liens and recoveries.

(a) Liens. The social services district may not impose any lien against a person's property prior to his or her death for MA paid or to be paid on his
or her behalf except:

(1) based upon a court judgment for benefits incorrectly paid; or

(2) against claims and suits for personal injuries, to recover the amount of MA furnished to a person on and after the date the person incurred the
injuries; or

(3) with respect to the real property of a person who is an in-patient in a nursing facility, intermediate care facility for the mentally retarded, or
other medical institution, and who is not reasonably expected to be discharged from the medical institution and return home, provided that:

(i) any such lien will dissolve upon the person's discharge and return home; and

(ii) no lien may be imposed on the person's home if the person's spouse, child under twenty-one years of age, certified blind or certified disabled child of any age, or sibling who has an equity interest in the home and who resided in the home for at least one year immediately before the date of the person's admission to the medical institution, is lawfully residing in the home.

(b) Adjustments and recoveries.

(1) A social services district may make no adjustment or recovery for MA correctly paid except from:

(i) the estate of a person who was 65 years of age or older when he or she received MA; or

(ii) the sale of real property subject to a lien imposed pursuant to paragraph (a)(3) of this section, or from the estate of such person; or

(iii) a legally responsible relative of an MA recipient, and then only the amount of MA granted, provided the relative has sufficient income and
resources which he or she fails or refuses to make available. The amount of income and resources required to be contributed by a legally responsible
relative is determined under Subpart 360-4 of this Part.

(2) An adjustment or recovery under subparagraph (i) or (ii) of paragraph (1) of this subdivision may be made from a person's estate only after the
death of the person's surviving spouse, and only when the person has no surviving child who is under twenty-one years of age or who is certified blind
or certified disabled.

(3) In addition to the limitations set forth in paragraph (2) of this subdivision, in the case of a lien on a person's home, no adjustment or recovery may be made when:

(i) a sibling of the person resided in the home for at least one year immediately before the date of the person's admission to the medical institution, and has lawfully resided in the home on a continuous basis since the date of admission; or

(ii) a child of the person resided in the home for a period of at least two years immediately before the date of the person's admission to a medical
institution, provided care to such person which permitted the person to reside at home rather than in an institution, and has lawfully resided in the home on a continuous basis since the date of admission.

(4) A social services district may maintain an action pursuant to sections 101 and 104 of the Social Services Law to collect from a trustee, grantor, or grantor's spouse any beneficial interest of the grantor or grantor's spouse in any trust established other than by will, to reimburse such district for the amount of MA granted to, or on behalf of, a grantor or grantor's spouse. The beneficial interest of the grantor or grantor's spouse includes any income and principal amounts to which the grantor or grantor's spouse would be entitled under the terms of the trust, by right or in the discretion of the trustee, assuming the full exercise of discretion by the trustee.

(5) If an MA recipient receives an insurance settlement for personal injuries which includes an amount for medical bills, the social services district may recover from such amount the cost of MA provided for the treatment of the injuries.

(6) A social services district may maintain an action under the Debtor and Creditor Law to set aside any transaction which appears to have been made for the purpose of qualifying a person for MA or for avoiding a lien or recovery of MA paid on behalf of an MA recipient.

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Section 360-7.12 - Co-payments by recipients.

360-7.12 Co-payments by recipients. (a) In accordance with section 367-a(6) of the Social Services Law, nominal co-payments must be imposed upon recipients for certain care, services and supplies furnished under the medical assistance program. Payments for claims for services specified in subdivision (d) of this section will be reduced by the amounts determined in subdivision (f) of this section. The providers of such services may charge recipients the co-payments. However, providers may not deny services to recipients because of their inability to pay the co-payments.

(b) Definitions.

(1) For purposes of this section, drugs with FDA-approved indications for the treatment of tuberculosis means aminosalicylate sodium (para-aminoslaicylate sodium), capremycin sulfate, cycloserine, ethambutol, ethionamide, isoniazid, pyrazinamide, rifampin, and streptomycin.

(2) Medical facility means residential health care facility or an intermediate care facility for the developmentally disabled.

(3) For purposes of this section, psychotropic drugs means acetazolamide, acetophenazine, alprazolam, amantadine, amitriptyline, amoxapine, benztropine, biperiden, bupropion, buspirone, butabarbital, cabamazepine, chloral hydrate, chlordiazepoxide, chlormezanone, chlorpromazine, chlorprothixene, clomipramine, clonazepam, clorazepate dipotassium, clozapine, desipramine, diazepam, diphenhydramine, doxepin, estazolam, ethorpropazine HC1, ethosuximide, ethotoin, fluoxetine, fluphenazine, flurazepam, halazpam, halorperidol, hydroxyzine HC1, hydroxyzine pamoate, imipramine, isocarboxazid, lithium, lorazepan, loxapine, maprotiline, mephenytoin, mephobarbital, meprobamate, methsuximide, mesoridazine, molindone, nortriptyline, oxazepam, paraldehyde, paramethadione, pentobarbital, perphenazine, phenacemide, phenelzine, phenobarbital, phensuximide, phenytoin, pimozide, prazepam, primidone, prochlorperazine, procyclidine, promazine, protriptyline, quazepam, secobarbital, sertraline, temazepam, thioridazine, thiothizene, tranylcypromine, trazodone, triazolam, trifluoperazine, triflupromazine, trihexyphenidyl HC1, trimethadione, trimipramine, and valproic acid and its derivatives.

(4) X-ray services means diagnostic radiology, diagnostic ultrasound, nuclear medicine or radiation oncology.

(c) Co-payments apply to all recipients except:

(l) individuals under 21 years of age;

(2) pregnant women;

(3) individuals who are in-patients in medical facilities or residents of community based residential facilities licensed by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities who have been required to spend all of their incomes for medical care, except their personal needs allowances;

(4) individuals enrolled in health maintenance organizations or other entities which provide comprehensive health services, or other managed care programs; and

(5) any other individuals required to be excluded by federal law or regulations.

(d) Co-payments only apply to the following services:

(1) in-patient care in a general hospital, as defined in subdivision 10 of section 2801 of the Public Health Law;

(2) out-patient hospital and clinic services, except for mental health services, mental retardation and developmental disability services, alcohol and substance abuse services and methadone maintenance services;

(3) sickroom supplies;

(4) drugs, except psychotropic drugs and drugs with FDA-approved indications for the treatment of tuberculosis as defined in subdivision (b) of this section;

(5) clinical laboratory services, except those provided by and payable to a physician or podiatrist;

(6) x-ray services, except those provided by and payable to physicians, podiatrists or dentists; and

(7) emergency room services provided for non-urgent or non-emergency medical care.

(e) Co-payments do not apply to emergency services or family planning services and supplies or tuberculosis directly observed therapy services provided by programs approved by the Department of Health.

(f) The amount of the co-payment for each service specified in subdivision (d) of this section, except for paragraph (1) relating to in-patient care, must not exceed the amount specified in paragraph (l) of this subdivision. The amount of the co-payment for each service specified in subdivision (d) is a standard co-payment amount based upon the average or typical payment for the service by the MA program, as set forth in paragraph (2) of this subdivision. The co-payment for each service specified in paragraph (l) of subdivision (d) of this section is $25.00 for each discharge.

(1) Schedule of co-payments:

 

Average or typical MA payment

Co-payment

$10 or less

$.50

$10.01 to $25

$1.00

$25.01 to $50

$2.00

$50.01 or more

$3.00

 

(2) Standard co-payment amounts:
 

Service

Co-payment

In-patient care

$25.00 per discharge

Out-patient hospital and clinic services

$3.00 per visit

Sickroom supplies

$1.00 per order

Enteral and parenteral formulae/supplies

$1.00 per claim

Brand name prescription drugs

$2.00 for each prescription dispensed

Generic prescription drugs

$ .50 for each prescription dispensed

Non-prescription drugs

$ .50 for each order dispensed

Clinical laboratory procedures

$ .50 for each procedure billed

Radiology procedures              

$1.00 for each procedure code billed

Emergency room services provided for non-urgent or non-emergency care

$3.00 per visit

 

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SubPart 360-8 - CONFIDENTIALITY OF HIV- AND AIDS-RELATED INFORMATION

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Section 360-8.1 - Confidentiality of HIV and AIDS related information.

360-8.1 Confidentiality of HIV and AIDS related information.

(a) Definitions. (1) "AIDS" means acquired immune deficiency syndrome, as may be defined from time to time by the Centers for Disease Control of the United States Public Health Service.

(2) "HIV infection" means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.

(3) "HIV related illness" means any illness that may result from or may be associated with HIV infection.

(4) "HIV related test" means any laboratory test or series of tests for any virus, antibody, antigen or etiologic agent whatsoever thought to cause or to indicate the presence of AIDS.

(5) "Confidential HIV related information" means any information, in the possession of a person who provides one or more health or social services or who obtains the information pursuant to a release of confidential HIV related information, concerning whether an individual has been the subject of an HIV related test, or has HIV infection, HIV related illness or AIDS, or information which identifies or reasonably could identify an individual as having one or more of such conditions, including information pertaining to such individual's contacts.

(6) "Health or social service" means any public or private care, treatment, clinical laboratory test, counseling or educational service for adults or children, and acute chronic, custodial, residential, outpatient, home or other health care provided pursuant to the Public Health Law or the Social Services Law; public assistance or care as defined in article one of the Social Services Law; employment-related services, housing services, foster care, shelter, protective services, day care, or preventive services provided pursuant to the Social Services Law; services for the mentally disabled as defined in article one of the Mental Hygiene Law; probation services, provided pursuant to article twelve of the Executive Law; parole services, provided pursuant to article twelve-B of the Executive Law; correctional services, provided pursuant to the Correction Law; and detention and rehabilitative services provided pursuant to article nineteen-G title 1 of the Executive Law.

(7) "Person" includes any natural persons, partnership, association, joint venture, trust, public or private corporation, or State or local government agency.

(8) Capacity to consent means an individual's ability, determined without regard to the individual's age, to understand and appreciate the nature and consequences of a proposed health care service, treatment or procedure, or of a proposed disclosure of confidential HIV-related information, as the case may be, and to make an informed decision concerning the service, treatment, procedure or disclosure.

(b) Applicability. This section applies to any person who obtains or receives confidential HIV related information in the course of administering the medical assistance program (MA) and implements Article 27-F of the Public Health Law. Any use or disclosure of such confidential HIV related information made on or after February 1, 1989 is subject to the terms of this section.

(c) Standard of use and disclosure. Confidential HIV related information can be used or disclosed only for a purpose which is directly connected with the administration of the MA program and consistent with the limitations of section 2782 of the Public Health Law relating to persons to whom or entities to which confidential HIV related information may be disclosed. As applied to this section, such a purpose may include supervision, monitoring, administration or provision of MA care, services and supplies. Any adverse case action taken against an applicant for or recipient of MA must be based solely upon the terms and conditions of eligibility and the furnishing of care, services and supplies as established by the Social Services Law and this Title. All social services district officials, employees and their agents are responsible for ensuring that no discrimination or abuse occurs against an applicant for or recipient of MA about whom confidential HIV related information is maintained.

(d) Access to confidential HIV related information. No social services district official, employee or agent will have access to confidential HIV related information except as necessary for the fulfillment of a purpose which is related to an official duty of such official, employee or agent and is directly connected with the administration of the MA program.

(e) Redisclosure of confidential HIV related information. No social services district official, employee or agent to whom confidential HIV related information has been disclosed can disclose such information to any other person except as authorized under paragraphs (c) and (d) of this section.

(f) Disclosure of confidential HIV related information under legal process. Confidential HIV related information must be disclosed for purposes of judicial administration only upon service of a court order for disclosure made pursuant to section 2785 of the Public Health Law.

(g) Disclosure of confidential HIV related information pursuant to a release. (1) Confidential HIV related information may be disclosed pursuant to a release. A release is a written authorization for disclosure of confidential HIV related information which satisfies the following conditions. The release:

(i) is signed by the person who is the subject of the confidential HIV related information or, if such person lacks capacity to consent, a person authorized pursuant to law to consent to health care for the person lacking capacity;

(ii) is dated and specifies the time period during which the release is to be effective; and

(iii) specifies to whom disclosure is authorized and the purpose for such disclosure.

(2) A general authorization for release of medical or other information does not satisfy the requirements of this subdivision and confidential HIV related information cannot be disclosed in response to a general release.

(h) Statement accompanying disclosure. (1) Any written disclosure of confidential HIV related information must be accompanied by a statement in writing which includes the following or substantially similar language: "This information has been disclosed to you from confidential records which are protected by State law. State law prohibits you from making any further disclosure of this information without the specific written consent of the person to whom it pertains, or as otherwise permitted by law. Any unauthorized further disclosure in violation of State law may result in a fine or jail sentence or both. A general authorization for the release of medical or other information is not sufficient authorization for further disclosure."

(2) Any oral disclosure of confidential HIV related information must be accompanied or followed as soon as possible, but no later than 10 days, by the statement in writing required by paragraph (1) of this subdivision.

(3) The statement in writing provided for in paragraph (1) of this subdivision is not required to accompany or follow a disclosure of confidential HIV related information made to the person who is the subject of the confidential HIV related information or, if such person lacks capacity to consent, a person authorized pursuant to law to consent to health care for the person lacking capacity.

(i) Policy and procedures for maintaining confidentiality. The department and social services districts must develop and implement policies and procedures to maintain the confidentiality of HIV related information. Such policies and procedures must be effectively communicated to social services officials, employees and agents and must include, but not be limited to, the following:

(1) responsibilities of staff to safeguard confidential HIV related information;

(2) procedures for secure record maintenance of confidential HIV related information, including electronically stored records; and

(3) procedures for accessing and disclosure of confidential HIV related information to assure that only authorized persons gain access to such information for permissible purposes.

 

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SubPart 360-9 - Catastrophic Health Care Expense Program

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Section 360-9.1 - Scope.

Section 360-9.1 Scope. As part of a comprehensive response to the difficulties individuals and families face in obtaining access to medical care and the extraordinary costs of such care, the Legislature enacted Title 11-A of Article 5 of the Social Services Law. That Title established the Catastrophic Health Care Expense Program (CHCEP) to test ways to expand the availability of health insurance coverage on a demonstration basis in no more than three social services districts. These regulations implement the provisions of the CHCEP.

 

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Section 360-9.2 - Demonstration applications.

360-9.2 Demonstration applications. A social services district may apply to participate in the CHCEP by submitting a proposal which describes how the program would be implemented in the district if the department approved the proposal. All proposals must be submitted by February 28, 1989, or such later date specified by the department.

 

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Section 360-9.3 - Definitions.

360-9.3 Definitions. For the purposes of this Subpart:

(a) Adjusted family income means the family income during a calendar year reduced by documented alimony payments, support payments, FICA contributions and federal, State and local income tax payments.

(b) Eligible catastrophic health care expenses means those health care expenses which can be paid for under the Medical Assistance (MA) program excluding expenses incurred for services provided to in-patients or residents of health care facilities, other than expenses incurred for acute care services that are provided by general hospitals. Eligible catastrophic health care expenses must be incurred in a calendar year after the time when a family's total health care expenses exceed fifty percent of the difference between the annual adjusted family income and the maximum amount of public assistance (PA) the family would receive if it were eligible for PA.

(c) Hardship. Hardship means an applicant's adjusted annual family income does not exceed 200 percent of the comparable federal income official property line (as defined and annually revised by the federal Office of Management and Budget) for a family of the same size and the family's total countable resources, computed according to Subpart 360-4 of this Title, do not exceed $10,000.

 

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Section 360-9.4 - Eligibility for the CHCEP Services.

360-9.4 Eligibility for the CHCEP Services.

(a) The CHCEP is available to a family which: is ineligible for MA and PA; meets the residency requirements of Section 369-c of the Social Services Law; and has eligible catastrophic health care expenses.

(b) (1) The CHCEP assistance with cost sharing of eligible catastrophic health care expenses is available to a family if its health care expenses, after deducting health insurance benefits, are in excess of 50 percent, but are no more than 75 percent, of the difference between the adjusted or projected annual family income and the maximum PA grant it would receive if it were eligible for PA.

(2) For a family which is eligible for the CHCEP assistance with cost sharing under paragraph (1) of this subdivision, the CHCEP will pay a percentage of the expenses for covered services and the family must pay the remainder. The Commissioner of Health has established a schedule setting forth the cost sharing percentages which will be used to allocate costs between families and the CHCEP for the various CHCEP services (l0 NYCRR 85.42). The CHCEP share of the expenses will be determined by multiplying the cost sharing percentage by the MA rate for the service or the rate charged by the provider of the service, whichever is less.

(3) A family in receipt of the CHCEP assistance with cost sharing may be reimbursed only for paid bills for health care services incurred during the previous calendar year, unless the family demonstrates hardship as defined in Section 360-9.3 of this Subpart. If hardship is demonstrated, the family in receipt of the CHCEP may be reimbursed up to the MA rate for the current year's expenses. When the social services district determines that hardship exists, payments may be made directly to the provider of the health care services. The social services district may determine that hardship exists at the time a family applies for an interim authorization or assistance with or without cost sharing under this Subpart.

(c) (1) The CHCEP assistance without cost sharing of eligible catastrophic health care expenses is available to a family if its health care expenses, after deducting health insurance benefits and the benefits available pursuant to Section 360-9.4(b) of this Subpart, are in excess of 75 percent of the difference between the adjusted or projected annual family income and the maximum PA grant it would receive if it were eligible for PA.

(2) For a family which is eligible for the CHCEP assistance without cost sharing under paragraph (l) of this subdivision, the CHCEP will reimburse a family for the bills it has paid for covered services and directly pay the provider of service for unpaid bills. The CHCEP will reimburse or pay for such bills at the MA rate for the service or the rate charged by the provider of the service, whichever is less.

(d) A family may apply to the social services district for an interim authorization which would enable the family, on a prospective basis, to have any medical expenses covered under the MA program reduced to the MA rate or fee. To be eligible for an interim authorization, a family must be eligible for the CHCEP pursuant to subdivision (b) or (c) of this section. The social services district must use projected income and allowable deductions to compute the current year's adjusted income for purposes of determining eligibility for interim authorization. The interim authorization may not extend beyond the final day of the calendar year in which the services were rendered and in which eligibility for the CHCEP assistance was based.

 

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Section 360-9.5 - Responsibilities of the CHCEP applicant and recipient.

360-9.5 Responsibilities of the CHCEP applicant and recipient.

(a) An applicant for the CHCEP assistance must submit to the social services district an application for such assistance together with documentation of any third-party health insurance benefits which are available to family members.

(b) A family which has received an interim authorization for CHCEP assistance must notify the appropriate social services official of any change in family size, income or estimated income upon which the eligibility determination was based within 30 days of the change.

 

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Section 360-9.6 - Powers and responsibilities of the social services district.

360-9.6 Powers and responsibilities of the social services district. Each social services district that participates in the CHCEP must:

(a) determine eligibility of a family to participate in the CHCEP within 90 days from receipt of an application;

(b) not require that a new application be submitted by an applicant who re-applies within 30 days of a notice of denial;

(c) ensure that the application date is the date of original application for any applicant who re-applies within 30 days of the notice of denial;

(d) provide written notice to the department if a problem arises which threatens the continuation or completion of the project. Such notice must be provided within three days after the problem arises or is discovered, including recommendations for resolving the problem;

(e) submit claims for payment to the department on a monthly basis;

(f) transfer to the department any funds received from sources other than the CHCEP for medical expenses which would be paid under the CHCEP;

(g) prepare quarterly progress and financial reports and submit the reports to the department no later than 30 days after the close of each calendar quarter;

(h) provide notice of the termination of the project to the department not less than 30 days prior to the effective date of termination if the district determines that continuing the CHCEP in the district is not feasible;

(i) use interim authorization and vendor billing forms approved by the department; and

(j) give applicants for or families in receipt of CHCEP assistance notices which comply with sections 358-2.2 and 358-3.3 of this Title.

 

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Section 360-9.7 - Powers and responsibilities of the department.

360-9.7 Powers and responsibilities of the department. The department may:

(a) withhold up to 10 percent of any CHCEP grant money owed to the district if the district does not comply with the provisions of section 360-9.6(h) of this Subpart; the department may pay the district the withheld amount only when the district complies with such provisions; and

(b) terminate the demonstration project in a social services district when it determines that termination would be in the State's best interest. Written notice of the termination must be provided to the district not less than 30 days prior to the effective date of the notice.

 

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SubPart 360-10 - Medicaid Managed Care Programs

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Section 360-10.1 - Introduction

Section 360-10.1 Introduction.

(a) Most Medicaid recipients are required and some recipients may elect to receive health services from a Medicaid managed care organization (MMCO). Individuals eligible for Family Health Plus, except for those who participate in the Family Health Plus Premium Assistance Program, are required to receive health care services from a MMCO.

(b) An MMCO must provide or arrange for the provision of all services set forth in its benefit package to its enrollees. The commissioner shall assure that Medicaid recipients in managed care have access to all services to which they are entitled under the Medicaid program, including services, if any, that are not included in their MMCO's benefit package and provided through the Medicaid Fee for Service Program. Family Health Plus enrollees are eligible for the services specified in section 369-ee of the Social Services Law.

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Section 360-10.2 - Scope

Section 360-10.2 Scope.

This Subpart describes:

(a) individuals required to enroll in an MMCO;

(b) individuals exempt or excluded from enrollment in an MMCO;

(c) good cause reasons for permitting an enrollee to change or disenroll from an MMCO;

(d) good cause reasons for permitting an enrollee to change primary care providers (PCPs);

(e) the fair hearing rights for managed care enrollees;

(f) marketing/outreach requirements for MMCOs;

(g) MMCO unacceptable practices;

(h) MMCO sanctions and due process.

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Section 360-10.3 - Definitions

Section 360-10.3 Definitions. As used in this Subpart, unless expressly stated otherwise or unless the context of the subject matter requires different interpretation:

(a) "Action" means, in the case of an MMCO or its management contractor:

(1) the denial or limited authorization of a requested service, including type or level of service; or

(2) the reduction, suspension, or termination of a previously authorized service; or

(3) the denial, in whole or in part, of payment for a service; or

(4) the failure to provide services in a timely manner, as set forth in the guidelines established by the commissioner; or

(5) the failure to act to resolve service authorization requests, complaints, grievances, and appeals with reasonable promptness. Reasonable promptness shall mean compliance with the timeframes established by public health law and applicable federal regulations, as set forth in the guidelines established by the commissioner;

(6) the denial of a request for out of network services for a managed care enrollee who is required to receive medical assistance services from an MMCO and who resides in a social services district where there is only one MMCO participating in the Medicaid managed care program; or

(7) the restriction of an enrollee to certain providers under the MMCO's recipient restriction program.

The decision of a primary care practitioner participating in a primary care partial capitation provider (PCPCP) exercising his or her professional judgment is not an action.

(b) "Disenrollment" means the process by which a Medicaid recipient's enrollment in an MMCO is terminated.

(c) "Enrollee" (Participant) means a Medicaid recipient who receives, is required to receive, or elects to receive his or her health care services from an MMCO, or an FHP eligible individual who is required to receive health care services from an MMCO.

(d) "Enrollment" means the process by which an enrollee's membership in an MMCO begins.

(e) "Grace period" means the period prescribed by federal or State statute during which an enrollee may elect to change MMCOs for any reason.

(f) "Lock-in period" means the period of time during which the enrollee may not disenroll from the MMCO unless the enrollee can demonstrate that he/she has good cause as defined in section 360-10.6 of this Subpart. The lock-in period shall begin on the effective date of enrollment and end after the first twelve months of enrollment, provided however, an enrollee may disenroll from an MMCO without cause during the grace period.

(g) "Management contractor," means any company, organization, or other entity that has entered into a management agreement with an MMCO, pursuant to section 98-1.11(j) of Title 10, to take an action on behalf of an MMCO. If so provided under the terms of such management agreement, the management contractor may, on behalf of the MMCO, accept appeals regarding the action and make appeal determinations.

(h) "Medicaid managed care organization (MMCO)," means one of the following entities that meets the requirements of section 364-j of the Social Services Law and is authorized to participate in the Medicaid managed care and/or Family Health Plus Programs: health maintenance organizations (HMOs), prepaid health services plans (PHSPs), comprehensive HIV special needs plans (HIV SNPs), and primary care partial capitation providers (PCPCPs). An MMCO is required to enter into a contract with the State; such contract must specify the services provided under the MMCO's benefit package, subject to any exclusions or limitations imposed by federal or State law.

(i) "Notice of action" means a notice issued by an MMCO or its management contractor when an action is taken. Also known as the "notice of intent to restrict" in the case of an MMCO's determination to restrict an enrollee under the MMCO's recipient restriction program.

(j) "Participating provider" means a provider of medical care and/or services that has a provider agreement with an MMCO.

(k) "Primary care practitioner (provider)" or "PCP" means a physician or nurse practitioner providing primary care to and management of medical and health care services of an enrollee.

(l) "Prospective Enrollee" means any individual residing in the MMCO's service area that has not yet enrolled in a MMCO's Medicaid managed care or FHP product.

(m) "Recipient restriction program" means an MMCO's procedures for review and assessment of an enrollee's misuse or abuse of medical assistance services and subsequent determination to restrict the enrollee to access certain medical assistance services through a designated provider or providers, or the MMCO's implementation of an enrollee restriction as directed by the Office of the Medicaid Inspector General. The MMCO's recipient restriction program is conducted in accordance with section 360-6.4(d) of this Part and the guidelines in the contract between the MMCO and the State.

(n) "Social services district" means the social services district or other designee of the department.

(o) "Service authorization request" means a request by an enrollee, or a provider on the enrollee's behalf, to an MMCO for the provision of a service, including a request for a referral or for a non-covered service.

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Section 360-10.4 - Individuals required to enroll in an MMCO

Section 360-10.4. Individuals required to enroll in an MMCO

(a) All Medicaid recipients, except for those who are eligible for an exemption or an exclusion pursuant to section 360-10.5 of this Subpart, residing in a social services district that has been approved to implement mandatory enrollment must enroll in an MMCO.

(b) Excluded populations may not enroll in an MMCO.

(c) Exempt populations are not required to enroll in an MMCO in a social services district where enrollment is mandatory; however, they may elect to voluntarily enroll.

(d) All FHP eligible individuals, except for those participating in the FHP premium assistance program, must enroll in an MMCO to receive services.

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Section 360-10.5 - Individuals exempt or excluded from enrollment in an MMCO

Section 360-10.5. Individuals exempt or excluded from enrollment in an MMCO.

(a) A Medicaid recipient is exempt from enrollment in an MMCO if the recipient meets one of the criteria for exemption identified in section 364-j (3)(b) of the Social Services Law.

(b) A Medicaid recipient identified in section 364-j (3)(e) of the Social Services Law is exempt from enrollment unless the commissioner has established program features for that population.

(c) A Medicaid recipient shall be excluded from enrollment in an MMCO if the recipient meets one of the criteria identified in section 364-j (3)(c) of the Social Services Law.

(d) Determination of a Medicaid recipient's eligibility for an exemption or exclusion shall be the responsibility of the social services district.

(1) Determinations made prior to enrollment.

(i) If a Medicaid recipient requests an exemption or exclusion from enrollment in an MMCO, the Medicaid recipient or the Medicaid recipient's representative must file a written request with the appropriate social services district. The social services district shall require the Medicaid recipient to provide documentation to support the request for an exemption or exclusion where appropriate.

(ii) The social services district must make a determination within 10 days after receipt of all necessary information and notify the Medicaid recipient in writing whether the request for an exemption or exclusion is granted or denied.

(iii) When a request for an exemption or exclusion is denied, the social services district must provide a written notice that explains the reason for the denial, states the facts upon which the denial is based, cites the relevant statutory or regulatory authority for the denial, and advises the Medicaid recipient of his or her right to a fair hearing. The notice must comply with subdivision (a) of section 358-2.2 of this Title.

(2) Determinations of a Medicaid recipient's eligibility for an exemption or exclusion from enrollment in a managed care program after enrollment has occurred.

(i) When the social services district becomes aware that an enrollee is excluded from participating in accordance with subdivision (c) of this section, the social services district will initiate disenrollment of the enrollee.

(ii) A Medicaid recipient may apply for an exemption or an exclusion by filing a written request with the appropriate social services district. The social services district shall require the Medicaid recipient to provide documentation to support the request for an exemption or exclusion where appropriate.

(a) The social services district must make a determination in sufficient time to ensure that the disenrollment will be effective no later than the first day of the second month following the month in which the social services district received the request, unless the recipient requests expedited disenrollment pursuant to paragraph (iii) of this subdivision.

(b) The social services district must notify the recipient in writing of its determination to approve or deny the request for an exemption or exclusion.

(c) When a request is denied, the social services district must provide a written notice that explains the reason for the denial, states the facts upon which the denial is based, cites the relevant statutory or regulatory authority for the denial, and advises the Medicaid recipient of his or her right to a fair hearing. The notice must comply with subdivision (a) of section 358-2.2 of this Title.

(iii) An enrollee may request an expedited disenrollment or change if: an immediate risk to the enrollee's health exists; the enrollment was non-consensual; or for other reasons as set forth in the contract between the MMCO and the State. The social services district may request documentation to substantiate the request. The effective date of the expedited disenrollment or change must comply with the timeframes found in the contract between the MMCO and the State.

(a) The social services district must notify the recipient in writing of its determination to approve or deny the request for an expedited disenrollment.

(b) When a request is denied, the social services district must provide a written notice that explains the reason for the denial, states the facts upon which the denial is based, cites the relevant statutory or regulatory authority for the denial, and advises the Medicaid recipient of his or her right to a fair hearing. The notice must comply with subdivision (a) of section 358-2.2 of this Title.

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Section 360-10.6 - Good cause for changing or disenrolling from an MMCO

Section 360-10.6 Good cause for changing or disenrolling from an MMCO

(a) Medicaid recipients

(1) A recipient who is required to enroll in an MMCO and who resides in a social services district with more than one MMCO available has good cause to change his or her MMCO during the lock-in period if:

(i) the MMCO has failed to furnish accessible and appropriate medical care, services or supplies to which the enrollee is entitled under the terms of the contract under which the MMCO has agreed to provide services. This includes, but is not limited to the failure to:

(a) arrange for the provision of primary care services;

(b) arrange for the provision of inpatient care;

(c) arrange for consultation with specialists and other ancillary service providers;

(d) arrange for covered services with qualified licensed or certified providers; or

(ii) the MMCO fails to adhere to the standards prescribed by the commissioner and such failure negatively and specifically impacts the enrollee; or

(iii) it is determined by the social services district, the commissioner, or its agent that the enrollment was not consensual; or

(iv) the enrollee, the MMCO and the social services district agree that a change of MMCOs would be in the best interest of the enrollee; or

(v) the MMCO has elected not to cover the Medicaid managed care benefit package service that the enrollee seeks and the service is offered by one or more other MMCOs in the enrollee's service area; or

(vi) the enrollee's medical condition requires related services to be performed at the same time, but all such related services cannot be arranged by the MMCO because the MMCO has elected not to cover one of the services the enrollee seeks and the enrollee's primary care provider or another provider determines that receiving the services separately would subject the enrollee to unnecessary risk; or

(vii) there exists any other good cause reason or another programmatic requirement for change or disenrollment, as provided for in the contract between the MMCO and the State.

(2) If there are no other MMCOs available in the enrollee's social services district, an enrollee seeking to disenroll from his or her current MMCO will be required to remain enrolled in the MMCO unless the reason for the disenrollment is described in subparagraph (i) or (ii) of paragraph (1) of this subdivision.

(3)(i) If an enrollee wishes to change or disenroll from an MMCO for good cause, the enrollee or the enrollee's representative must file a written or verbal request with the social services district.

(ii) The social services district must make a determination on the request in sufficient time to ensure that a change, if approved, is effective no later than the first day of the second month following the month in which the request was received, unless the enrollee has requested an expedited change pursuant to subparagraph (iii) of paragraph (2) of subdivision (e) of section 360-10.5 of this Subpart. If the social services district fails to make the determination before the first day of such second month, the request is considered approved.

(iii) An enrollee whose request for a change of MMCO has been denied by the social services district shall be provided with a written notice which states the decision, the reasons for the denial, the facts upon which the denial is based, cites the relevant statutory and regulatory authority and advises the enrollee of his or her right to a fair hearing. The notice must comply with the requirements specified in subdivision (a) of section 358-2.2 of this Title.

(b) Family health plus enrollees

(1) If there is another MMCO available in the enrollee's social services district, an enrollee may change his or her MMCO during the lock-in period if:

(i) the MMCO has failed to furnish accessible and appropriate medical care, services or supplies to which the enrollee is entitled under the terms of the contract under which the MMCO has agreed to provide services. This includes, but is not limited to, the failure to:

(a) arrange for the provision of primary care services;

(b) arrange for the provision of inpatient care;

(c) arrange for consultation with specialists and other ancillary service providers;

(d) arrange for covered services with qualified licensed or certified providers; or

(ii) the MMCO fails to adhere to the standards prescribed by the commissioner and such failure negatively and specifically impacts the enrollee; or

(iii) it is determined by the social services district, the commissioner, or its agent that the enrollment was not consensual; or

(iv) the enrollee, the MMCO and the social services district agree that a change of MMCOs would be in the best interest of the enrollee; or

(v) the MMCO has elected not to cover the FHP benefit package service that the enrollee seeks and the service is offered by one or more other MMCOs in the enrollee's service area; or

(vi) the enrollee's medical condition requires related services to be performed at the same time, but all such related services cannot be arranged by the MMCO because the MMCO has elected not to cover one of the services the enrollee seeks and the enrollee's primary care provider or another provider determines that receiving the services separately would subject the enrollee to unnecessary risk; or

(vii) there exists any other good cause reason or another programmatic reason for disenrollment, as provided for in the contract between the MMCO and the State.

(2) If the enrollee resides in a social services district in which there are no other MMCOs available, the enrollee will be required to remain enrolled in the MMCO unless the enrollee chooses to discontinue his or her participation in the FHP program.

(3)(i) If an enrollee wishes to change or disenroll from an MMCO for good cause, the enrollee or the enrollee's representative must file a written or verbal request with the social services district.

(ii) The social services district must make a determination on the request in sufficient time to ensure that a change, if approved, is effective no later than the first day of the second month following the month in which the request was received, unless the enrollee has requested an expedited change pursuant to subparagraph (iv) of this paragraph. If the social services district fails to make the determination before the first day of such second month, the request is considered approved.

(iii) An enrollee whose request for a change of MMCO has been denied by the social services district shall be provided with a written notice which states the decision, the reasons for the denial, the facts upon which the denial is based, cites the relevant statutory and regulatory authority and advises the enrollee of his or her right to a fair hearing. The notice must comply with the requirements specified in subdivision (a) of section 358-2.2 of this Title.

(iv) An enrollee may request an expedited disenrollment or change if: an immediate risk to the enrollee's health exists; the enrollment was non-consensual; or for other reasons as set forth in the contract between the MMCO and the State. The social services district may request documentation to substantiate the request. The effective date of the expedited disenrollment or change must comply with the timeframes found in the contract between the MMCO and the State.

(a) The social services district must notify the recipient in writing of its determination to approve or deny the request for an expedited disenrollment.

(b) When a request is denied, the social services district must provide a written notice that explains the reason for the denial, states the facts upon which the denial is based, cites the relevant statutory or regulatory authority for the denial, and advises the Medicaid recipient of his or her right to a fair hearing. The notice must comply with subdivision (a) of section 358-2.2 of this Title.

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Section 360-10.7 - Good cause for changing primary care practitioners

Section 360-10.7 Good cause for changing primary care practitioners.

(a) An MMCO must allow enrollees to change PCPs without cause within 30 days of the enrollee's first appointment with the PCP. After the first 30 days, the MMCO may elect to limit enrollees to changing PCPs every six months without cause. This subdivision does not apply to enrollees restricted pursuant to section 360-6.4 of this Part or the MMCO’s recipient restriction program.

(b) If the MMCO has elected to restrict PCP changes, or an enrollee has been restricted pursuant to section 360-6.4 of this Part or the MMCO's recipient restriction program, an enrollee nevertheless has good cause to change PCPs at any time if:

(1) the provider has failed to furnish accessible and appropriate medical care, services or supplies to which the enrollee is entitled under the terms of the contract under which the MMCO has agreed to provide services. This includes, but is not limited to, the failure to:

(i) provide primary care services;

(ii) arrange for inpatient care, consultations with specialists, or laboratory or radiological services when reasonably necessary;

(iii) arrange for consultation appointments;

(iv) coordinate and interpret any consultation findings with an emphasis on continuity of medical care;

(v) arrange for services with qualified licensed or certified providers;

(vi) coordinate the enrollee's overall medical care such as periodic immunizations and diagnosis and treatment of any illness or injury; or

(2) the enrollee disagrees with a treatment plan; or

(3) the enrollee and provider are not able to communicate due to a language barrier or other impediment to communication; or

(4) the provider is not able to reasonably accommodate the enrollee's special needs; or

(5) there is a change in the provider's practice, including but not limited to the following:

(i) the provider moves to a location that is not convenient for the enrollee; or

(ii) there is a significant change in the hours the provider is available and the enrollee cannot reasonably make appointments during the new hours; or

(iii) the provider no longer has hospital privileges; or

(6) the provider fails to adhere to the standards prescribed by the commissioner and such failure negatively and specifically impacts the enrollee; or

(7) the enrollee and the provider agree that a change would be in the best interest of the enrollee; or

(8) the provider leaves the MMCO's network.

(c) Requests to change PCPs.

(1) An enrollee must submit a request to change PCPs to the MMCO according to the procedures established by the MMCO.

(2) The MMCO must provide the enrollee with a decision on the enrollee's request within 30 days of receipt of the request.

(3) If approved, the change must be effective no later than the first day of the second month following the month in which the request is received.

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Section 360-10.8 - Fair hearings

Section 360-10.8 Fair hearings

(a) Part 358 of this Title is incorporated by reference as if set forth fully herein and is applicable to enrollees, MMCOs, and management contractors, except that, where a provision in this section is inconsistent with Part 358 of this Title, the provision in this section will apply.

(b) In addition to the fair hearing rights in Part 358 of this Title, enrollees have a right to a fair hearing if:

(1) a social services district denies a request for an exemption or exclusion from Medicaid managed care;

(2) a social services district denies a request to enroll in, disenroll from, or change an MMCO;

(3) the social services district requires the enrollee to disenroll from an MMCO;

(4) a PCPCP has upheld the decision of a PCP to: deny a request for a referral; deny or reduce a benefit or service; or authorize a service in an amount less than requested; or

(5) an MMCO, or its management contractor, has taken an action, as defined in section 360-10.3 of this Subpart.

(c) Enrollees do not have a right to a fair hearing if:

(1) the sole issue is a federal or State law requiring a change adversely affecting some or all enrollees; or

(2) the sole issue is a result of a change in the contract between the MMCO and the State, that has been approved by the federal government; or

(3) the sole issue is an act of an MMCO that does not constitute an action; or

(4) the sole issue is a participating provider denied or reduced a service, denied access to a referral, or authorized a service or benefit in an amount less than requested, unless the enrollee has received a determination or notice of action from the MMCO,or its management contractor, confirming the decision of the provider.

(d) Requests for a fair hearing.

(1) Except as provided in paragraph (2) of this subdivision, an enrollee must request a fair hearing in accordance with section 358-3.5 of this Title.

(2) a request for fair hearing regarding an MMCO's or its management contractor's action must be requested by the enrollee within 60 days of:

(i) the date of the MMCO's or its management contractor's notice of action; or

(ii) the MMCO's or its management contractor's failure to act on service authorization requests, complaints, grievances, or appeals within the timeframes established by the public health law and applicable federal regulations, as set forth in guidelines established by the commissioner.

(e) Notices

(1) A social services district shall notify an enrollee in writing of their right to a fair hearing and how to request a fair, pursuant to section 358-2.2 of this Title, hearing whenever the social services district:

(i) denies a request for exemption or exclusion from enrollment in an MMCO; or

(ii) determines to disenroll an enrollee from an MMCO; or

(iii) denies a request to enroll in, disenroll from, or change an MMCO.

(2) An MMCO or its management contractor shall notify an enrollee in writing of their right to a fair hearing and how to request a fair hearing in a manner and form determined by the department whenever a notice of action is issued. For the purposes of this paragraph, "MMCO" means an HMO, PHSP or HIV SNP. A notice of action that sets forth all of the information required by subparagraph (i) of this paragraph will be considered an adequate notice for the purposes of section 358-2.2 of this Title.

(i) The notice of action shall include:

(a) the action the MMCO has taken or intends to take and the effective date of the action;

(b) the specific reason for the action, including clinical rationale, if any;

(c) the name of the MMCO and, if the action is being taken by its management contractor on behalf of an MMCO, the name of the management contractor;

(d) a toll-free phone number and address by which the enrollee may request general assistance from the MMCO to understand the notice of action and their rights as described in this paragraph;

(e) the enrollee's right to file an appeal with the MMCO, or with its management contractor, if applicable, and the procedures for exercising these rights, including:

(1) the timeframe in which to request an appeal;

(2) the circumstances under which an expedited resolution is available and how to request it;

(3) the enrollee's right to designate a representative to request an appeal on their behalf and how to do so;

(4) the address and toll-free phone number to request an appeal;

(5) the timeframe for resolution of standard and expedited appeals and how the enrollee will be notified of the appeal determination;

(f) the enrollee's right to a fair hearing and the procedures for exercising this right, including:

(1) the timeframe in which to request a fair hearing;

(2) the address and toll-free phone number to request a fair hearing;

(3) the enrollee's right to designate a representative to request a fair hearing on their behalf;

(4) an explanation that a request for an appeal with the MMCO or its management contractor is not a fair hearing and that a separate request for a fair hearing must be made;

(5) the specific laws and/or regulations upon which the action is based;

(6) the enrollee's right to present written and oral evidence at the fair hearing;

(7) the enrollee's right to see their case file and to request evidence prepared by the MMCO for the enrollee's fair hearing and how to make such request;

(8) the enrollee’s right to representation by legal counsel or other person; information concerning the availability of community legal services to assist the enrollee with their MMCO appeal or at the fair hearing; and the enrollee’s right to bring witnesses to the fair hearing and to question witnesses at the fair hearing;

(9) if the action or sole issue in dispute is one of those described in subdivision (c) of this section or in section 358-3.1(f) of this Title, an explanation that although the enrollee has the right to have a hearing scheduled, the hearing officer at the hearing may determine that the enrollee does not have the right to a hearing or continuation of benefits; and

(10) if the action is a restriction under the MMCO's recipient restriction program:

(i) a recipient information packet, which provides a summary of the specific reason(s) for the restriction, including, but not limited to, a summary of any review conducted of the enrollee's pattern of service utilization and evidence confirming that the enrollee's use of services meets a condition for restriction, as defined in section 360-6.4(d) of this Part or in the guidelines in the contract between the MMCO and the State.

(ii) the date the restriction will begin;

(iii) the effect and scope of the restriction;

(iv) the right of the enrollee to select a provider for the restricted service within two weeks of date of the notice of intent to restrict if the MMCO provides a choice of providers to the enrollee;

(v) the right of the MMCO to select a provider for the restricted service if a choice is not provided to the enrollee or if the enrollee does not select such provider within two weeks of being given a choice;

(vi) the right of the enrollee to change providers as provided by section 360-6.4(e) of this Part and section 360-10.7(b) of this Subpart;

(vii) the right of the enrollee to explain and present documentation upon appeal to the MMCO showing the medical necessity of the services cited in the recipient information packet;

(viii) the right of the enrollee to examine all records maintained by the MMCO or the state which identify medical assistance services paid for on behalf of the enrollee;

(ix) a statement that filing an appeal with the MMCO does not suspend the effective date of the restriction and that filing an appeal with the MMCO does not take the place of or abridge the enrollee's right to a fair hearing;

(x) the right of the enrollee to request that benefits be continued unchanged pending resolution of the fair hearing, how to request that benefits be continued and the circumstances under which the enrollee may be required to pay the costs of those services; and

(11) if an MMCO or its management contractor has determined to reduce, suspend, or terminate a service or benefit currently authorized: thecircumstances under which the enrollee's benefits will be continued unchanged; how to request that benefits be continued; explanation that a request for an MMCO appeal is not a request for the enrollee to have benefits continue; and the circumstances under which the enrollee may be required to pay the costs of continued services. Such notice shall be issued within the timeframes required by federal regulations at 42 CFR 438.404(c)(1) and sections 358-2.23, 358-3.3(a)(1), and 358-3.3(d)(1) of this Title.

(ii) The notice of action shall include other information as may be required by federal or State law or regulation, or by guidelines issued by the commissioner for MMCO actions and grievance systems.

(iii) The notices shall be issued by the MMCO within the timeframes specified in the guidelines for MMCO actions and grievance systems, issued by the commissioner, subject to all applicable requirements of State and federal statutes and regulations.

(3) A PCPCP shall notify an enrollee in writing of their right to a fair hearing and how to request a fair hearing in a manner and form determined by the department whenever a grievance determination notice is issued upholding a participating provider's decision to deny a request for a referral, or to deny or reduce a benefit or service, or to authorize a service in an amount less than requested. The grievance determination notice shall include information, and be issued within the timeframes specified in the contract between the PCPCP and the State.

(f) Responsibilities of social services districts and MMCOs

(1) For fair hearings about enrollment, disenrollment, or Medicaid eligibility, a representative of the social services district must appear at the hearing or obtain a waiver of personal appearance, and the district must comply with the other requirements of sections 358-4.2 and 358-4.3 of this Title.

(2) For fair hearings challenging MMCO determinations concerning services or treatment, the social services district may, but is not required to, appear at the fair hearing.

(3) The MMCO must prepare evidence to justify its challenged determinations. Upon request, the MMCO must provide to the enrollee or the enrollee's authorized representative copies of the documents the MMCO will present at the fair hearing. Upon request, the MMCO must also provide the enrollee or the enrollee's authorized representative access to the enrollee's MMCO case file, and provide copies of documents contained in the file. Such copies must be provided at a reasonable time before the date of the hearing. If the request for copies of documents is made less than five business days before the hearing, the social services district and the MMCO must provide the enrollee and the enrollee's authorized representative such copies no later than at the time of the hearing. Such documents must be provided without charge and must be provided to the enrollee and the enrollee's authorized representative by mail within a reasonable time from the date of the request if the enrollee or the enrollee's authorized representative request that such documents be mailed; provided however, if there is insufficient time for such documents to be mailed and received before the scheduled date of the hearing such documents may be presented at the hearing instead of being mailed.

(4) The MMCO may present the evidence at the hearing or request a waiver of personal appearance and submit written evidence. If the MMCO will not be making a personal appearance at the fair hearing, the written material must be submitted at least three business days prior to the scheduled hearing: to the office of administrative hearings (OAH); and to the enrollee or enrollee's representative, unless the material was previously provided to the enrollee or the enrollee's authorized representative in accordance with paragraph (3) of this subdivision. If the hearing is scheduled fewer than three business days after the request, the MMCO must deliver the evidence to the hearing site no later than one business day prior to the hearing; otherwise it must appear in person. If the MMCO has reversed its initial determination and provided the service to the enrollee, the MMCO may request a waiver of personal appearance and submit papers explaining that it has withdrawn the initial determination and is providing the services or treatment. Only the enrollee or the enrollee's authorized representative may withdraw his or her request for a fair hearing.

(5) The MMCO must comply with all fair hearing decisions and directives, pursuant to section 22 of the Social Services Law.

(g) Enrollees have a right to have their benefits continue unchanged ("aid continuing") under the circumstances described in section 358-3.6 of this Title and in this subdivision.

(1) Fair hearings about enrollment issues

(i) When an individual files a request for a fair hearing about an enrollment decision made by the social services district before the effective date specified in the notice from the social services district, the individual's enrollment status may remain the same pending the fair hearing.

(a) If the recipient is not enrolled and has a request for an exemption or exclusion denied, the Medicaid recipient will remain in fee-for-service Medicaid until the fair hearing decision is issued if the recipient alleges a basis for exemption or exclusion that is described in subdivision (3) of section 364-j of the Social Services Law. Otherwise, the Medicaid recipient will be required to enroll in an MMCO until the fair hearing decision is issued.

(b) If a recipient's request to enroll in an MMCO is denied, the Medicaid recipient will remain in fee-for-service Medicaid until the fair hearing decision is issued.

(c) If a recipient is enrolled and has a request for disenrollment, including a request for an exemption or exclusion, denied, the Medicaid recipient will remain enrolled in the MMCO until the fair hearing decision is issued.

(d) If an enrollee is required to disenroll from an MMCO, the enrollee will remain enrolled until the fair hearing decision is made.

(2) Fair hearings about MMCO determinations.

(i) Pursuant to 42 CFR 438.420, an enrollee may continue to receive services or treatment unchanged when an MMCO or its management contractor has terminated, suspended, or reduced a previously authorized service or treatment, or proposes to do so, if:

(a) the enrollee has filed a request for a fair hearing within 10 days of the notice of action or grievance determination notice, or by the intended date of the action, whichever is later; and

(b) there is a valid order for the treatment or service from a participating provider or from the provider originally authorized by the MMCO to provide the treatment or service; and

(c) the enrollee requests that benefits continue.

(ii) If aid continuing is granted pursuant to subparagraph (i) of this paragraph, benefits will be reinstated by the MMCO, or its management contractor, until:

(a) the enrollee or the enrollee's authorized representative withdraws the fair hearing request; or

(b) the provider order expires; or

(c) a fair hearing decision is issued that is adverse to the enrollee.

(iii) Pursuant to section 358-3.6 of this Title, an enrollee may continue to receive services or treatments unchanged, pending the fair hearing, when an MMCO has determined to restrict the recipient under the MMCO's recipient restriction program and the enrollee requests a fair hearing prior to the effective date of the restriction.

(iv) If a fair hearing decision is not in favor of the enrollee, the enrollee may be required to reimburse the MMCO for the cost of any health care services received while waiting for the fair hearing determination.

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Section 360-10.9 - Marketing/Outreach

Section 360-10.9 Marketing/Outreach

(a) An MMCO may only engage in marketing/outreach activities to the extent and in a manner approved by the department, in accordance with marketing/outreach and enrollment guidelines issued by the commissioner.

(b) MMCOs shall comply with marketing/outreach and enrollment guidelines issued by the commissioner.

(c) MMCOs shall comply with State and federal laws and implementing regulations regarding marketing/outreach.

(d) Marketing/outreach shall include but not be limited to activities of the MMCO, a subcontractor, or individuals or entities affiliated with the MMCO, during which information and material regarding Medicaid managed care or the FHP program and information about a particular MMCO's affiliated products are presented. Such information may be presented through verbal exchanges, the distribution of written materials and/or the giving away of nominal gifts, as per guidelines issued by the commissioner.

(e) MMCOs shall comply with State and federal laws and implementing regulations regarding confidentiality, including adherence to HIV, mental health, and substance abuse confidentiality requirements established under state law and implementing regulations; and ensure marketing/outreach representatives' compliance with such requirements through annual training, employee newsletters, and inclusion in the MMCO's policies and procedure manual.

(f) MMCOs shall prepare a marketing/outreach plan. Marketing/outreach plans shall not be implemented without the prior written consent of the commissioner.

(g) Each marketing/outreach plan shall include, but not be limited to:

(1) goals and general marketing/outreach strategy;

(2) a description of marketing/outreach activities;

(3) a staffing plan related to marketing/outreach including training and compensation methodology and levels;

(4) a description of how the MMCO will meet the informational needs of eligible persons including those who speak a language other than English as a first language and/or who have a hearing, visual, physical or cognitive impairment, in order to enable such persons to make a voluntary and informed choice;

(5) a description of the activities the MMCO will implement to monitor compliance with this section, including how the MMCO will ensure compliance with State and federal laws and implementing regulations regarding confidentiality; and

(6) identification of the primary marketing/outreach locations at which marketing/outreach will be conducted.

(h) Marketing/outreach materials include materials that are produced in any medium by or on behalf of an MMCO and can be reasonably interpreted as intended to market or outreach to prospective enrollees. Marketing/outreach materials are to be made available in other languages and in formats for those who have a hearing, visual, or cognitive impairment. Marketing/outreach materials may not be used by an MMCO without the prior written consent of the commissioner or his or her designee, and shall include:

(1) advertising, public service announcements, printed publications, and other broadcast or electronic messages designed to increase awareness and interest in Medicaid managed care or the FHP program and/or an MMCO's Medicaid or FHP managed care product; and

(2) any information that references the Medicaid managed care or the Family Health Plus program, is intended for general distribution, and is produced in a variety of print, broadcast, and other media types. This includes but shall not be limited to: scripts or outlines of presentations, radio advertisements, television advertisements, billboards, newspapers, leaflets, informational brochures, videos and broadcast materials, telephone book yellow page advertisements, letters, posters and the member handbook.

(i) The sites at which MMCOs may distribute marketing/outreach materials, subject to the approval of the commissioner or his or her designee, may include, but shall not be limited to: community centers; resource centers; markets; pharmacies; shopping malls; any social services district office, subject to the approval of the social services district; primary care provider offices; health centers; approved areas in hospitals and other provider sites; schools; health fairs; and other non-prohibited sites authorized by the commissioner or his or her designee where prospective enrollees are likely to gather.

(j) Prohibited marketing/outreach and enrollment practices shall include but not be limited to:

(1) marketing/outreach without the permission of the commissioner;

(2) using deceptive or coercive marketing/outreach materials and practices such as:

(i) making false statements;

(ii) deceiving, misleading, or threatening an eligible person to influence or induce selection of a particular plan;

(iii) discouraging enrollment on the basis of health status or need for health care services;

(iv) signing a person's name on the enrollment agreement without consent;

(3) making any unsolicited personal contact;

(4) conducting door-to-door solicitation or making inquiries at the home of a prospective enrollee without the prospective enrollee having requested or assented to that contact;

(5) marketing/outreach in patient rooms or at treatment sites (other than waiting areas) unless requested by the prospective enrollee;

(6) marketing/outreach in emergency rooms, including waiting areas;

(7) seeking to induce selection of an MMCO by offering gifts to prospective enrollees which exceed the value specified in the marketing/outreach guidelines;

(8) distributing new or revised marketing/outreach materials that have not been approved by the department;

(9) violating State or federal confidentiality laws and implementing regulations;

(10) providing misleading or false information to the department or the department's designee to substantiate a prospective enrollee's eligibility for enrollment; or

(11) accepting the enrollment of a person when the MMCO had access to information indicating the MMCO was not authorized to enroll the person.

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Section 360-10.10 - MMCO unacceptable practices

Section 360-10.10 MMCO unacceptable practices

(a) In addition to the unacceptable practices set forth in Part 515 of this title, it is an unacceptable practice for an MMCO or any of its subcontractors to:

(1) fail to provide or arrange for medically necessary services that the MMCO is required to provide under its contract with the State;

(2) impose premiums or charges on enrollees that are in excess of the premiums or charges allowed under the Medicaid managed care program or the Family Health Plus program;

(3) discriminate among enrollees on the basis of their health status or need for health care services. This includes requests for termination of enrollment by the MMCO, refusal by the MMCO to re-enroll an enrollee, or any practice to discourage enrollment, except when an enrollee has been disenrolled at the request of the MMCO in accordance with the guidelines in the contract between the MMCO and the State;

(4) provide false or misleading information to a prospective enrollee, health care provider, social services district, the State, or the federal government;

(5) commit one of the prohibited marketing/outreach or enrollment practices defined in subdivision (j) of section 360-10.9 of this Part;

(6) violate any other applicable requirements of section 1903 or 1932 of the federal social security act and implementing regulations; or

(7) fail to comply with the material terms of the contract with the State.

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Section 360-10.11 - MMCO sanctions and due process

Section 360-10.11 MMCO sanctions and due process

(a) Upon a determination that an MMCO has committed an unacceptable practice, the department may impose one or more of the following sanctions:

(1) civil monetary penalties;

(2) suspension of new enrollment, including auto assignments, after the effective date of the sanction; or

(3) termination of the contract between the MMCO and the State.

(b) Before imposing a sanction pursuant to this section, the department shall provide the MMCO with a notice of proposed agency action. The written notice shall specify the proposed action and the reason for such action, and shall provide the MMCO with a reasonable opportunity to submit documentation or written arguments objecting to the sanction which the department shall give due consideration.

(c) The department shall provide the social services district with notice of its intent to impose a sanction.

(d) When the department imposes one of the sanctions described in subdivision (a) of this section, the MMCO will be afforded due process in accordance with 18 NYCRR Parts 515, 516, and 519, and 42 CFR 438.710.

(e) Nothing in this section shall be deemed to prevent the commissioner from appointing temporary management of an MMCO pursuant to subdivision 23 of section 364-j of the social services law upon a determination that an MMCO has repeatedly failed to meet the substantive requirements of sections 1903(m) and 1932 of the federal social security act.

(f) Nothing in this section limits other remedies available to the State under the contract.

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Section 360-10.12 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.13 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.14 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.15 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.16 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.17 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Subpart 360-11 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Part 361 - CASE MANAGEMENT ACTIVITIES FOR PREGNANT AND PARENTING ADOLESCENTS

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Statutory Authority: 
Social Services Law, Sections 20, 34, 409-k

Section 361.0 Scope

Section 361.0 Scope. This Part requires social services districts, subject to the appropriation of funds therefor, to establish and implement a case management system for eligible pregnant, parenting and at-risk adolescent public assistance recipients, and specifies the case management activities the social services districts are to perform. The purpose of the case management system is to help eligible adolescents to maintain and strengthen their family life and to attain or retain the capability for maximum self support and personal independence by assessing the adolescents' needs, providing the adolescents with information about and referrals to services and assistance providers which can help the adolescents meet their needs, and monitoring such referrals. These regulations are required by the Teenage Services Act, chapter 975 of the Laws of 1984.

Effective Date: 
Friday, July 29, 2011

Section 361.1 - Definitions.

361.1 Definitions. (a) For the purposes of this Part, case management activities means those activities performed by case management staff, in consultation with an eligible adolescent and other individuals involved with the adolescent if appropriate, related to ensuring that the adolescent has full access to the comprehensive array of services and assistance available in the community which the adolescent needs to maintain and strengthen family life and to attain or retain the capability for maximum self-support and personal independence.

(b) For the purposes of this Part, public assistance recipient means an individual whose needs are included in a grant of aid to dependent children, veteran assistance or home relief, or an individual who is a payee of such benefits on behalf of his or her minor child(ren).

 

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Section 361.2 - Administrative requirements.

361.2 Administrative requirements. (a) Case management plans.

(1) Submission of plans. Each social services district must develop, in consultation with the director of its income maintenance program and staff of other divisions or agencies as appropriate, a plan for performing the case management activities described in this Part. A social services district must submit its case management plan to the department for approval in a format and at a time specified by the department.

(2) Amending plans. A social services district may propose amendments to those provisions of its approved case management plan which are within its discretion by submitting a consolidated services plan or annual implementation report amendment to the department for review and approval.

(b) Performing case management activities. A social services district may perform case management activities or may purchase such activities from other local public agencies and/or nonprofit agencies and organizations. If a social services district chooses to purchase case management activities, the district must designate in its case management plan the agency or agencies the district will authorize to perform case management activities. Irrespective of whether a social services district chooses to perform case management activities directly or to purchase such activities from an agency, the district is responsible for ensuring that potentially eligible adolescents are identified and referred to case management staff for case management activities and that the case management activities and recordkeeping required by this Part are performed satisfactorily.

(c) Staffing. Primary responsibility for performing case management activities must be given to case managers. Case managers must have the education, experience, training and/or knowledge in the areas necessary to assess the needs and capabilities of, and to assist, pregnant, parenting and at-risk adolescents to access the services and assistance needed to maintain and strengthen family life and to attain or retain the capability for maximum self-support and personal independence, including but not limited to the areas of adolescent development, adolescent sexuality, and effective interviewing techniques. A social services district must indicate in its case management plan the position specifications for case managers. Paraprofessional staff and volunteers may be used as case management staff to assist the case managers and may perform those activities which are appropriate based on their training and experience.

(d) Submission of information. Each social services district must submit to the department information regarding the performance of case management activities in such form and at such time as specified by the department.

 

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Section 361.3 - Prohibited activities.

361.3 Prohibited activities. Case managers and case management staff do not have the authority, with respect to any adolescent for whom case management activities are being performed and the child(ren) of such adolescent, to:

(a) provide, authorize or purchase services or assistance reimbursable under title XX of the Federal Social Security Act or otherwise administered or funded by the social services district;

(b) accept or deny any application for public assistance or for services or assistance reimbursable under title XX of the Federal Social Security Act or otherwise administered or funded by the social services district; or

(c) place the adolescent or his or her child(ren) in foster care, or remove the adolescent or his or her child(ren) from the home of his or her parent or guardian.

 

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Section 361.4 - Eligibility.

361.4 Eligibility. (a) Mandatory eligibility criteria. A social services district must offer to perform case management activities with respect to any male or female adolescent who meets all of the following mandatory eligibility criteria at the time the adolescent is referred to case management staff for case management activities:

(1) is under 18 years of age;

(2) is a public assistance recipient; and

(3) is a parent and resides in the same household with his or her child(ren), or is pregnant.

(b) Optional eligibility criteria. (1) At-risk of pregnancy or parenthood. A social services district may offer to perform case management activities with respect to any male or female adolescent who is over 18 but under 21 years of age, is a public assistance recipient and is deemed to be at risk of pregnancy or parenthood because he or she meets one or more of the following at-risk criteria at the time the adolescent is referred to case management staff for case management activities:

(i) receives public assistance in his or her own right;

(ii) is homeless or at imminent risk of becoming homeless;

(iii) has had an abortion or miscarriage;

(iv) has had a pregnancy test, even if the test outcome was negative;

(v) is sexually active;

(vi) is the non-custodial mother or father of a child;

(vii) is the younger sibling of an individual who was or is a teenage parent;

(viii) is a rape or incest victim;

(ix) has dropped out of high school without graduating;

(x) is having academic and/or disciplinary problems in school; or

(xi) requests case management activities, or his or her authorized representative requests such activities on behalf of the adolescent.

(2) Age. A social services district may offer to provide case management services to any male or female adolescent who is over 18 years of age but under 21 years at the time the adolescent is referred to case management staff for case management activities, is a public assistance recipient, and either is a parent who resides in the same household with his or her minor child(ren), or is pregnant.

(3) Each social services district has the option of deciding for which adolescents who meet the optional eligibility criteria, if any, it will perform case management activities. A social services district may decide that it will not perform case management activities for adolescents who meet the optional eligibility criteria; or the district may limit its performance of case management activities to those adolescents who meet only certain of the optional eligibility criteria listed in paragraphs (1) and (2) of this subdivision. A district may further limit its performance of case management activities to a subgroup of those at-risk adolescents having identified special needs or problems. Each district must indicate in its case management plan if it will perform case management activities for adolescents who meet the optional eligibility criteria. If a district chooses to perform case management activities for such adolescents, it must specifically designate in its case management plan which optional eligibility criteria those adolescents must meet in order to be eligible for case management activities. A social services district must perform case management activities for all the adolescents who meet the optional eligibility criteria the district designates in its case management plan.

(c) Continuing case management activities. (1) Mandatory. A social services district must continue to perform case management activities for adolescents who want to continue participating in such activities and whose cases are open as long as the adolescents continue to meet the mandatory eligibility criteria or the optional eligibility criteria designated in the district's case management plan.

(2) Optional. (i) A social services district may choose to continue to perform case management activities: for adolescent public assistance recipients who met the mandatory eligibility criteria when they were referred to case management staff for case management activities because they were parenting adolescents residing in the same household with their child(ren) at that time even if they no longer reside in the same household with their child(ren), and for adolescent public assistance recipients who met the mandatory eligibility criteria when they were referred to case management staff for case management activities because they were pregnant at that time even if they subsequently miscarry or abort their pregnancies.

(ii) A social services district may choose to continue to perform case management activities for adolescent public assistance recipients who are over 18 but under 21 years of age if the adolescents otherwise still meet the mandatory eligibility criteria or the optional eligibility criteria designated in the social services district's case management plan.

 

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Section 361.5 - Voluntary participation in case management activities.

361.5 Voluntary participation in case management activities. A social services district may not impose, or threaten to impose, fiscal or other sanctions on an adolescent who refuses to participate in case management activities or refuses to be referred to or receive the services or assistance identified in his or her personal plan as necessary to maintain and strengthen family life and/or to attain or retain the capability for maximum self-support and personal independence, except when the law otherwise requires participation in programs in order to receive public assistance.

 

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Section 361.6 - Intake and screening of cases.

361.6 Intake and screening of cases. (a) Referral. Each social services district must develop the means of identifying potentially eligible adolescents and for having those adolescents referred to a case manager for intake and initial assessment. The social services district must establish procedures for separating out of the public assistance rolls the cases involving potentially eligible pregnant, parenting and at-risk adolescents and for assigning case managers to those adolescents. Case managers and case management staff may also participate in or perform activities designed to inform other potentially eligible adolescents that case management activities are available, including but not limited to encouraging community organizations and services and assistance providers to refer potentially eligible adolescents to the social services district for case management activities. Special emphasis must be placed on encouraging medical and health care providers to refer potentially eligible pregnant adolescents to the social services district for case management activities as soon as possible after pregnancy is confirmed.

(b) Screening. Case managers and case management staff must screen each adolescent referred for case management activities to determine whether the adolescent meets the eligibility criteria. Whenever appropriate, an adolescent who is not eligible for case management activities must be referred to services within the social services district or the community.

 

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Section 361.7 - Initial contacts.

361.7 Initial contacts. (a) Method. Case management staff must contact each referred adolescent who potentially is eligible for case management activities in order to arrange an initial interview and needs assessment. The initial contact may be made by letter, telephone or personal visit.

(b) Scheduling the initial interview. The initial interview and assessment must occur within 30 calendar days from the date the adolescent is referred to case management staff for case management activities. Case management staff must make reasonable attempts to schedule the initial interview at a place and time convenient to the adolescent, taking into consideration that the adolescent's access to transportation and child care may be limited.

(c) Confirming the initial interview. Regardless of how the initial contact was made, the case manager must provide the adolescent with a written confirmation of the initial interview within a reasonable amount of time prior to the interview date so that the adolescent has sufficient notice of the scheduled interview. The confirmation must include information regarding: the purpose, time, date and location of the initial interview; the voluntary nature of the activities; any arrangements made for necessary child care and transportation; and the name and telephone number of the individual the adolescent should contact regarding any questions about the case management activities, any assistance needed in making child care or transportation arrangements, or rescheduling the interview.

(d) Recontact. Case management staff must recontact an adolescent who fails to respond to the initial contact, or who is unavailable for the initial interview, for the purpose of rescheduling the initial interview so the interview will occur within 30 calendar days from the date the adolescent was referred to case management staff for case management activities or as soon thereafter as possible.

(e) Refusal to participate. If the adolescent, without explanation or cause, again fails to contact the case manager or is unavailable for the rescheduled interview, then the case manager may, but is not mandated to, consider such failure as a refusal by the adolescent to participate in case management activities.

(f) Record of referred cases. Case management staff must maintain a log or other record containing information about the adolescents referred for case management activities. The social services district may use a format for this record which best meets the district's purposes. The record must include, but need not be limited to: the name of the referred adolescent; identifying information about the adolescent, such as his or her client identification number, public assistance case number, social security number and date of birth; the source and date of the referral to case management staff for case management activities; the method and date of the initial contact to arrange an initial interview and needs assessment; and the referral's disposition, including, as appropriate, whether the case was opened or the reasons for determining the adolescent was ineligible for case management activities or the reasons the adolescent gave for refusing to participate in such activities.

 

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Section 361.8 - Initial interviews and needs assessments; case openings; interim

361.8 Initial interviews and needs assessments; case openings; interim plans. (a) Initial interview and needs assessment. Within 30 calendar days from the date an adolescent is referred to case management staff for case management activities, the case manager must interview the adolescent and any other appropriate individual to determine the adolescent's willingness to participate in case management activities and to assess the adolescent's and his or her child(ren)'s immediate needs. During the initial needs assessment the case manager must determine, at a minimum:

(1) if the adolescent receives, or is eligible for, public assistance, food stamp, and medical assistance entitlements;

(2) if the adolescent's living arrangements are stable, including if there is a risk the adolescent will become homeless within the next 90 days;

(3) if the adolescent or his or her child(ren) have any health conditions or problems requiring immediate medical attention; and

(4) if the adolescent or his or her child(ren) have, or are substantially at risk of having, any other emergency needs which may endanger their health or welfare.

(b) Case opening. A case will be considered opened if the adolescent participates in the initial interview and needs assessment. The case manager must establish an individual case record for each open case pursuant to the requirements of section 361.12 of this Part. In the case of a pregnant adolescent, the need to obtain early and regular prenatal care must be considered an emergency medical need and the case manager immediately must attempt to refer the adolescent to an appropriate medical or health care provider to obtain such care.

(c) Interim plan. Based on the initial needs assessment, the case manager must develop, in consultation with the adolescent and any other appropriate individual, an interim plan to help the adolescent meet his or her and his or her child(ren)'s immediate needs. The case manager must inform the adolescent about the services and assistance providers available to meet the adolescent's needs and refer the adolescent to the providers of the adolescent's choice. The adolescent may choose which portions of the interim plan he or she will pursue. The case manager may not deem the adolescent's failure to complete any portion of the interim plan as a request by the adolescent to have the case closed.

 

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Section 361.9 - Comprehensive needs assessments; identifying goals, tasks and

361.9 Comprehensive needs assessments; identifying goals, tasks and providers; personal plans. (a) Timing. Within 90 calendar days from the date an eligible adolescent is referred to case management staff for case management activities, the case manager must provide the adolescent with the information and assistance necessary to ensure that the adolescent understands which services and assistance providers exist to help the adolescent to maintain and strengthen family life and to attain or retain the capability for maximum self-support and personal independence so the adolescent may make an informed choice regarding the services and assistance providers to which he or she would like to be referred. The case manager also must complete a comprehensive assessment of the adolescent's needs; identify the short- and long-range goals the adolescent needs to achieve and the tasks the adolescent needs to complete in order to maintain and strengthen family life and to attain or retain the capability for maximum self-support and personal independence, and the estimated time periods for achieving those goals and completing those tasks; identify and inform the adolescent about the services and assistance providers available to help the adolescent attain those goals and complete those tasks; and develop a personal plan for the adolescent to gain access to the services and assistance providers to which the adolescent chooses to be referred.

(b) Comprehensive needs assessment. (1) The case manager must complete a comprehensive assessment of the adolescent's strengths and short- and long-term needs in each of the primary assessment areas set out in paragraph (2) of this subdivision as they relate to the adolescent's ability to maintain and strengthen family life and to attain or retain the capability for maximum self-support and personal independence in order to ascertain what services and assistance providers are available in the community to help the adolescent meet his or her needs. The case manager must ask the adolescent to provide the information needed to complete the comprehensive needs assessment and, when and if appropriate considering the individual case circumstances, seek to obtain, with the adolescent's or his/her authorized representative's permission, needed information from other sources. The case manager may not deem an adolescent's refusal to provide information needed to complete any portion of the comprehensive needs assessment as a request by the adolescent to have the case closed. However, the case manager must indicate in the adolescent's case record the reasons such information was unavailable and must pursue whatever other areas of assessment and planning are possible based on the information provided by the adolescent or obtained from other sources. The findings of the comprehensive needs assessment must be documented in the adolescent's individual case record.

(2) Primary assessment areas. (i) Basic maintenance. The case manager must assess, at a minimum: the adolescent's progress in resolving the emergency needs identified in the initial needs assessment and the actions necessary to resolve the conditions which contributed to those emergency needs; the adolescent's understanding of basic public assistance, food stamp, medical assistance, child support, and housing assistance, as appropriate, and the actions necessary to obtain and maintain entitlement to such assistance; and any other factors relating to the adolescent's ability to obtain and maintain the basic necessities of daily living for himself or herself and his or her child(ren).

(ii) Basic educational competence. The case manager must determine the adolescent's current educational status, including the adolescent's current grade level or the last grade the adolescent completed and the extent to which the adolescent is performing at the expected grade level and if the adolescent has any special educational needs or problems. When necessary, the case manager must attempt to have the adolescent obtain, from appropriate educational professionals, a formal assessment of the adolescent's educational capacities and needs. Special emphasis must be placed on assessing how the adolescent's current educational status and attitudes may affect the adolescent's vocational aspirations.

(iii) Vocational orientation. The case manager must assess the adolescent's vocational aspirations and basic attitudes toward employment. Any special talents, capabilities and competencies which the adolescent still must achieve before his or her vocational aspirations can be fulfilled must be assessed. The case manager must determine the adolescent's employment history, past vocational experience, job-related training and vocational education.

(iv) Health maintenance. The case manager must assess the adolescent's knowledge of, and attitudes toward, family planning, parenting, sexual activities, and reproduction. The case manager also must determine if the adolescent and/or his or her child(ren) potentially are eligible for programs which may be needed to ensure the health of the adolescent and/or his or her child(ren). The case manager must attempt to have the adolescent obtain from a medical professional an assessment of the adolescent's and his or her child(ren)'s general health, medical history and any special health or medical needs relating to the adolescent's ability to accomplish his or her goals, including any need for specialized medical treatment of specific health problems. If the adolescent is pregnant, the case manager must assess the extent to which the adolescent has followed through on any initial referrals for needed medical services. The case manager also must explore the adolescent's knowledge of basic health maintenance, including personal health maintenance and nutrition; the prevention of sexually transmitted and other diseases; and the types and timing of professional preventive health care, such as immunizations and periodic checkups, needed to protect the adolescent's and his or her child(ren)'s health.

(v) Informal support network. The case manager must assess the extent to which the person with whom the adolescent has intimate and continuous social contact and/or the parent of the adolescent's child(ren) and the adolescent's family members and friends are capable of providing, or required to provide, assistance, guidance and emotional support to help the adolescent implement his or her personal plan. The case manager also must assess any needs or problems such other individuals have which may impede the adolescent's ability to attain his or her goals.

(vi) Personal capabilities. The case manager must assess the adolescent's knowledge, maturity, skills, abilities and weaknesses, and how these personal capabilities are likely to affect the adolescent's ability to establish realistic goals and to follow through on the tasks the adolescent needs to complete to maintain and strengthen family life and to attain or retain the capability for maximum self-support and personal independence. The case manager must determine the extent to which he or she needs to supervise and monitor the adolescent's personal plan activities, and determine if the adolescent needs any personal counseling services.

(c) Identifying goals, tasks and providers. Based on the adolescent's assessed needs, the case manager, in consultation with the adolescent and any other appropriate individual, must identify: the adolescent's short- and long-range goals within each of the primary assessment areas, the specific tasks which the adolescent and other appropriate individuals need to complete for the adolescent to attain those goals, and the estimated time periods necessary to attain those goals and complete those tasks. The case manager also must identify the service and assistance providers available to help the adolescent attain those goals and complete those tasks and provide the adolescent with information about those providers so the adolescent can make an informed choice regarding the providers to which the adolescent wants to be referred.

(d) Personal plan. The case manager, in consultation with the adolescent and any other appropriate individual, must develop a personal plan for the adolescent describing: the goals toward which the adolescent chooses to work, the tasks necessary to accomplish those goals, the service and assistance providers to which the adolescent chooses to be referred to receive help in attaining those goals, and the estimated time periods necessary to attain those goals. The personal plan does not have to include all the goals the adolescent needs to achieve in order to maintain and strengthen family life and to attain or retain the capa bility for maximum self-support and personal independence; however, the plan must include those goals toward which the adolescent chooses to work during the next six-month period and the services and assistance providers to which the adolescent chooses to be referred to receive help in attaining those goals. The personal plan should be written in such a manner that the adolescent will be able to understand the plan's provisions. The personal plan must include a statement explaining that the plan is flexible and that it can and will be revised if necessary. The adolescent must be given a copy of the personal plan, and a copy must be retained in the adolescent's individual case record.

(e) Failure to comply with the plan. The case manager may not deem the adolescent's failure to complete any portion of his or her personal plan as a request by the adolescent to have the case closed.

 

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Section 361.10 - Referrals to, and monitoring of, services and assistance.

361.10 Referrals to, and monitoring of, services and assistance. (a) Referrals. The case manager and case management staff must perform the activities necessary to ensure the adolescent is referred and has access to the services and assistance providers to which the adolescent chooses to be referred in order to receive help in maintaining and strengthening family life and attaining or retaining the capability for maximum selfsupport and personal independence. Such activities may include, as appropriate to the adolescent's needs, capabilities and desires:

(1) informing the adolescent of the name and location of available services and assistance providers, the nature and types of services or assistance available from the providers, the hours the providers operate, and the providers' application requirements;

(2) assisting the adolescent to apply for needed services and assistance, including obtaining necessary application forms and instructions, assisting the adolescent to complete required forms, assisting the adolescent to obtain required documentation and evaluations, scheduling appointments or other preapplication interviews, notifying services or assistance providers that the adolescent has been referred for services or assistance, making arrangements for the adolescent to obtain child care, and accompanying the adolescent on interviews. The case manager and case management staff also may assist any other appropriate individual in applying for needed services and assistance which will help the adolescent attain his or her goals;

(3) participating in case conferences with the services and assistance providers identified in the adolescent's personal plan to coordinate services and assistance delivery and to eliminate any scheduling or other problems; and

(4) arranging for such transportation as is necessary to ensure the adolescent's access to needed services and assistance, provided the transportation is not otherwise available to the adolescent and that its provision is necessary for the adolescent to attain a goal identified in his or her personal plan.

(b) Monitoring. The case manager must monitor referrals made on behalf of the adolescent in order to: ensure the adolescent receives the services and assistance which the adolescent needs as identified in his or her personal plan, help the adolescent resolve problems which prevent or reduce access to needed services or assistance, make alternative arrangements when needed services or assistance are denied or otherwise unavailable, and determine how effective the services and assistance providers are in helping the adolescent to maintain and strengthen family life and/or to attain or retain the capability for maximum self-support and personal independence. If the adolescent's personal plan incorporates the services and assistance needs of other individuals, such as the person with whom the adolescent has intimate and continuous social contact and/or the parent of the adolescent's child(ren) and/or the adolescent's family members, then the case manager also must monitor referrals made on behalf of such individuals.

(c) Denied or unavailable services or assistance. If an adolescent is denied the services or assistance for which he or she was referred, or such services or assistance are unavailable to the adolescent, the case manager must make

appropriate inquiries to determine the reasons for the denial or unavailability. The case manager also must take any action necessary, or document any unsuccessful attempt, to have the providers furnish such services or assistance to the adolescent or to find alternative providers who can meet the adolescent's needs. The case manager and case management staff may participate in meetings with services and assistance providers and adolescent pregnancy networks and consortia to obtain better overall coordination and availability of, and to identify and remove barriers to, the services and assistance needed by pregnant, parenting, and at-risk adolescent public assistance recipients.

 

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Section 361.11 - Amending and reevaluating personal plans.

361.11 Amending and reevaluating personal plans. (a) Amending the personal plan. The case manager, in consultation with the adolescent and any other appropriate individual, must amend the adolescent's personal plan whenever necessary because of changes in the adolescent's circumstances or information received through referrals or by monitoring services and assistance delivery.

(b) Reevaluating the personal plan. The case manager, in consultation with the adolescent and any other appropriate individual, must conduct a comprehensive reevaluation of the adolescent's personal plan no later than six calendar months following the initial needs assessment and every six months thereafter. The case manager may reevaluate the personal plan more frequently if appropriate. During a comprehensive reevaluation, the case manager must at least:

(1) review the goals the adolescent needs to achieve and the tasks the adolescent needs to complete in order to maintain and strengthen family life and to attain or retain the capability for maximum self-support and personal independence;

(2) assess the extent to which the adolescent achieved those goals and completed those tasks during the period since the personal plan was established or most recently reevaluated, and how effective the services and assistance providers to which the adolescent was referred were in helping the adolescent to achieve those goals;

(3) review the goals and tasks the adolescent will pursue until the next comprehensive reevaluation;

(4) revise the personal plan, if necessary, based on information obtained during the comprehensive reevaluation; and

(5) identify any new services and assistance needs and referrals to be made to services and assistance providers.

 

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Section 361.12 - Individual case records.

361.12 Individual case records. (a) When required. The case manager must maintain an individual case record for each eligible adolescent who participates in at least the initial interview and assessment.

(b) Contents. Each individual case record must include, but need not be limited to:

(1) summaries of the initial and comprehensive needs assessments findings;

(2) copies of any specialized needs assessments, such as medical, educational or vocational assessments, obtained by the case manager in order to complete the assessment, planning and monitoring activities;

(3) identification of the short- and long-range goals which the assessments indicate the adolescent needs to achieve in order to maintain and strengthen family life and to attain or retain the capability for maximum self-support and personal independence, and estimates of the time periods necessary to achieve those goals;

(4) identification of the services and assistance the adolescent needs in order to attain those short- and long-range goals and of the services and assistance providers available in the community to help the adolescent attain those goals and any unavailable service or assistance;

(5) the adolescent's personal plan;

(6) documentation of the referrals made on behalf of the adolescent to services or assistance providers, including the dates the referrals were made and the times the appointments were to occur;

(7) a list of all services or assistance rendered by the district and by other public and private agencies in the community;

(8) documentation of the follow-up actions taken to ensure the adolescent received needed services or assistance and any action taken to remove any barrier impeding the maximum efficiency of services or assistance delivery;

(9) a list of the types of, and whenever possible, the costs of and funding sources for the services and assistance the adolescent received. The case manager and case management staff may perform the activities necessary to determine such information; and

(10) documentation of oral communications with, and copies of written communications to or from, the adolescent and communications with any other individuals or agencies made on behalf of the adolescent.

(c) Confidentiality. Individual case records, whether developed by the social services district or by other agencies from which the district has purchased case management activities, are confidential and must be maintained in accordance with the provisions of section 136 of the Social Services Law and Part 357 of this Title.

(d) Case record activities. Case managers and case management staff may perform the activities necessary to maintain individual case records and to collect aggregate data about the adolescents participating in case management activities.

(e) Retaining records. The agency which maintains individual case records, whether the social services district or any other agency from which the district has purchased case management activities, must retain an adolescent's individual case record until the adolescent becomes 21 years old or for six years after the case management activities performed on behalf of the adolescent are terminated, whichever comes later.

(f) Department inspection. The agency which maintains individual case records, whether the social services district or any other agency from which the district has purchased case management activities, will make such records available for department representatives to inspect and will forward photostatic copies of such records to the department upon request.

(g) Records of services and assistance providers. When referrals for services and assistance are made by case management staff to providers receiving funds under other State programs or paid directly by the social services district, the district may ask the providers to obtain and transmit to case management staff the information necessary to perform the case management activities described in this Part. Whether case management staff may or may not redisclose such information depends on the statutory confidentiality requirements applicable to the particular type of information.

 

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Section 361.13 - Closing and reopening cases.

361.13 Closing and reopening cases. (a) Closing a case. The case manager must close a case and terminate case management activities when the adolescent:

(1) successfully accomplishes all the long-range goals identified in his or her case record;

(2) accomplishes, on schedule for one year, the short-range goals identified in his or her individual case record for all the primary assessment areas, and the adolescent and the case manager agree the adolescent should pursue the long-range goals without the performance of case management activities by the case manager;

(3) no longer is under the district's jurisdiction;

(4) no longer meets the eligibility requirements for case management activities; or

(5) requests that the case be closed. If the adolescent fails, without explanation or cause, to keep three consecutive appointments made by the case manager, and advance notice of the appointments was provided to the adolescent and the appointments are documented in the adolescent's individual case record, then the case manager may, but is not mandated to, deem such failure to constitute a request by the adolescent to have his or her case closed. However, the adolescent's failure to complete any portion of his or her personal plan will not be deemed a request by the adolescent to have his or her case closed.

(b) Reopening a closed case. (1) Mandatory. At the adolescent's request, the case manager must reopen a closed case if the adolescent continues to meet the mandatory eligibility criteria or the optional eligibility criteria designated in the social services district's case management plan.

(2) Optional. At the adolescent's request, the case manager may reopen a closed case within six calendar months of the month in which the case was closed if the adolescent still is a public assistance recipient and still would be eligible for case management activities if the case had not been closed.

 

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Part 366 - CHILD ASSISTANCE PROGRAM - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 366

CHILD ASSISTANCE PROGRAM

(Statutory authority: Social Services Law, Sections 20, 34, 131)
Sec.
366.0 Scope
366.1 Applicability of Office regulations
366.2 District responsibilities
366.3 General provisions of CAP
366.4 Eligibility requirements for CAP
366.5 Need standards and allowances
366.6 Budgeting
366.7 Special allowances
366.8 Food stamp eligibility
366.9 Case management
366.10 Notice and procedural rights

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Part 368 - AID TO THE AGED, BLIND OR DISABLED

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Statutory Authority: 
Social Services Law, Sections 20, 34; L. 1971, ch. 110, Section 83

Section 368.1 - Definitions.

Section 368.1 Definitions. (a) Aid to the aged, blind or disabled or AABD means the combined program for providing financial assistance, care and referral for services, exclusive of medical assistance, to the following:

(1) individuals 65 years of age or older (OAA);

(2) blind persons (AB); and

(3) individuals, 18 years of age but less than 65 who are permanently and totally disabled (AD).

(b) Blind means that the individual is totally without or has impaired vision of not more than 20/200 visual acuity in the better eye and for whom a diagnosis and medical findings show that vision cannot be improved to better than 20/200; or who has loss of vision due wholly or in part to impairment of field vision or to other factors which affect the usefulness of vision to a like degree.

(c) Permanently and totally disabled means that the individual has a permanent physical or mental impairment, disease; or loss, or combination thereof that substantially precludes him from engaging in useful occupations within his competence, such as holding a job or performing homemaking.

(1) Permanently refers to a condition which is not likely to improve or which will continue throughout the life time of the individual; it may be a condition which is not likely to respond to any known therapeutic procedure, or a condition which is likely to remain static or to become worse unless certain therapeutic measures are carried out, where treatment is unavailable, inadvisable, or is refused by the individual on a reasonable basis; "permanently" does not rule out the possibility of vocational rehabilitation or even possible recovery in light of future medical advances or changed prognosis; in this sense the term refers to a condition which continues indefinitely as distinct from one which is temporary or transient.

(2) Totally involves considerations in addition to those verified through the medical findings, such as age, training skills, and work experience and the probable functioning of the individual in his particular situation in light of his impairment; an individual's disability would usually be tested in relation to ability to engage in remunerative employment; the ability to keep house or to care for others would be the appropriate test for (and only for) individuals, such as housewives, who were engaged in this occupation prior to the disability and do have a history of gainful employment; eligibility may continue even after a period of rehabilitation and readjustment, if the individual's work capacity is still very considerably limited (in comparison with that of a normal person) in terms of such factors as the speed with which he can work, the amount he can produce in a given time, and the number of hours he is able to work.

(3) (i) Group I. Individuals having permanent impairments which are totally disabling and definitely irreversible. This classification includes persons who show no possibility of engaging in a useful occupation but who are under medical supervision engaging in motivated activity or in an occupational therapy program.

(ii) Group II. Individuals having permanent impairments which, while totally disabling at the time of initial determination, are such that the condition may be arrested or a remission may occur, or for which therapeutic advances are occurring or where rehabilitation is deemed feasible. Group II designation is limited to those persons who are expected to show a change in physical or mental status or improved functioning which will enable them to become capable of useful employment.

(4) Terminal illness. An illness in its final stage which:

(i) cannot benefit from further treatment; and

(ii) is expected to lead to progressive physical and/or mental deterioration; and

(iii) is expected to cause the patient's death in a relatively short period of time.

(5) Completely helpless. A condition of permanent impairment of such severity confirmed by medical judgment that a person must remain confined indefinitely in his or her home or a medical institution.

(6) Review team means technically competent persons, not less than a physician and a social worker qualified by professional training and pertinent experience, acting cooperatively, employed by the department or designated by the department, who are responsible for the agency's decision that the applicant does or does not meet the State's definition of permanent and total disability, based on the evaluation of the medical report and social history.

(i) The medical report shall include a substantiated diagnosis, based either on existing medical evidence or upon current medical examination;

(ii) The social history shall contain sufficient information to make it possible to relate the medical findings to the activities of the "useful occupation" and to determine whether the individual is totally disabled.

(7) Useful occupation means gainful employment and homemaking.

(i) Employment. Employment as a useful occupation refers to a fulltime job for which the person is compensated at the prevailing wages in the community. It excludes hobbies, activities which do not provide a bona fide job opportunity, activity which if discontinued by the individual would not require someone to be hired as a replacement, and activities primarily of therapeutic or rehabilitative nature. It also excludes those situations where the severely handicapped person through diligent effort does some work or where sympathy or compassion of others provides the opportunity to engage in remunerative work or where the energy output of the handicapped person is far beyond that which is ordinarily required for that activity or where it takes him substantially more time to do the work than a normal person. It does not necessarily exclude persons employed in a sheltered workshop.

(ii) Homemaking. Homemaking as a useful occupation involves ability to carry major home management and decision-making responsibilities and provide essential service within the home for at least one person, in addition to one's self.

(iii) Homemaker. A person who resides alone shall not be evaluated as a homemaker. Only those individuals, such as housewives, who were engaged in this occupation prior to the disability and who do not have a history of gainful employment are to be evaluated as homemakers.

(8) Substantially precludes means the inability of a person to perform activities related to gainful employment well enough for a sufficient number of hours or with sufficient regularity to receive regular payment for the employment; or in the case of the homemaker, the person is unable to perform regularly a significant combination of the activities required of a homemaker within acceptable standards. There shall be sufficient medical and social data to support the person's inability to perform on a predictable basis any job for which he has competence and which exists in the community.

(9) Competence means the ability to perform the activities required by a useful occupation for which the individual is fitted by age, background, skills, training, education or work experience.

(10) A job which exists in the community is one within an area which is reasonably accessible rather than in the immediate neighborhood of the disabled person's home. However, whether it is feasible for a handicapped person to accept a specific job within the larger employment area will depend on such factors as its distance from his home, what methods of transportation are available and his ability to use such form of transportation, the time consumed in travel and the cost.

 

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Section 368.2 - Application for AABD.

368.2 Application for AABD. (a) Each application for AABD shall be recorded on the application form required by the department in accordance with the department regulations.

(b) If an applicant who is mentally capable but physically handicapped, had help in completing the application form, his signature and the signature and address of the person providing such help must be entered on the application form.

(c) If an applicant who is mentally capable, but illiterate, signs the application forms with an "X", the signature and address of a person witnessing the "X" must be entered on the application form.

 

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Section 368.3 - Determination of initial eligibility.

368.3 Determination of initial eligibility. Eligibility for AABD shall be determined for each applicant in accordance with the policies and procedures generally applicable in public assistance. The determination shall include appropriate verification of the factors of age, blindness or permanent and total disability in accordance with department regulations. A social services official shall make full utilization of Federal categorical assistance when granting aid to persons eligible or presumptively eligible for aid to the aged, blind or disabled. When there is a need and a presumption of eligibility for assistance under the combined AABD program, the pre-determination grant procedure shall be followed.

 

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Section 368.4 - Financial factors.

368.4 Financial factors. (a) Financial need. The need for public assistance of all persons who are aged, blind or disabled shall be determined in accordance with department regulations.

(b) Exploration of income and resources. All income and resources shall be indicated on the application form and evaluated as to their immediate and/or potential availability to remove or reduce need for assistance and utilized for such purpose in accordance with applicable regulations of the department. When a clear, consistent statement of financial need and resources cannot be obtained, a full field investigation by the validation staff shall be made.

(1) Residents of private institution. When an applicant is a resident of a private non-profit institution, such as a home for the aged or blind, or a home

for adults, determination shall be made as to: the basis upon which he was admitted, particularly whether the home is obligated to provide care and maintenance by the terms of a contract, by the provisions of the charter of the home, or by conditions and restrictions on gifts and bequests made to the home: resources possessed at admission or acquired during residence and their disposition; and provision of special medical care and burial.

(i) A resident is not eligible for assistance if and so long as the home is obligated to provide for all his needs and the home is able to fulfill its obligation. If it is determined that the home is unable to fulfill its obligation to the resident, this obligation may, with the approval of the department, be considered to be suspended while the home's inability continues. In such instances, as well as in instances where the home's obligation has terminated, as when a contract has been fully performed by the home or has been terminated by agreement of the parties, determination of eligibility shall be made as for any other applicant. This shall include determination as to whether or not resources assigned, donated or contributed to the home have been exhausted for the maintenance of the applicant prior to his application for public assistance.

(ii) For the applicant resident in a home on the basis of a non-life care contract, resources deposited with the institution shall be investigated to determine to what extent they have been used to meet the cost of his care and to provide burial reserve. Until the resources exclusive of burial reserve have been exhausted on this basis, there is no eligibility for public assistance while the applicant is a resident of the home, except when his contract with the home is considered suspended. If the applicant had such an arrangement but has left the institution, there shall be a determination as to any unused resources and their availability to him.

(2) Admission to an institution. A social services official shall include in the exploration and evaluation of resources the availability and suitability of care in a private home for the aged or a private institution for adults for which an applicant may be eligible because of membership in a fraternal organization or other association or in a government home or institution for which an applicant may be eligible because of veteran status. Since admission to such a home or institution is voluntary, this resource is not to be considered available if the individual is unwilling to use such facilities.

 

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Section 368.5 - Non-financial factors.

368.5 Non-financial factors. (a) Residence. Sufficient information shall be obtained to establish the fact that the applicant for or recipient of AABD is found within or residing in the social services district on the date of the application and subsequent thereto, except for temporary absence.

(b) Support from legally responsible relatives. Determination of the ability of legally responsible relatives to assist shall be made and enforced in accordance with applicable department regulations.

(c) Transfer of property. Whenever investigation indicates that a person applying for AABD has transferred or assigned his property, real or personal, prior to application, the reason for such transfer or assignment shall be sought and a determination made as to whether such transfer or assignment was made for the purpose of qualifying for assistance.

(1) A transfer of property made within one year prior to the date of the person's application for such assistance shall be presumed to have been made for the purpose of qualifying for such assistance.

(2) If it is determined that there was no intent to defraud the agency and that the action which the applicant took at the time the property was conveyed was a normal transaction, not taken for the purpose of qualifying for assistance, such transfer or assignment shall not constitute a basis for denial.

(3) If transfer or assignment is found to have been made for the purpose of qualifying for AABD, the agency shall determine whether the property is available for return to the applicant or assignment to the agency. When not available for return or assignment, the application for assistance shall he denied.

 

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Section 368.6 - Planning for employment, rehabilitation and training--aid to the disabled.

Section 386.6 Planning for employment, rehabilitation and training--aid to the disabled. (a) The social services district shall, when circumstances so require, provide:

(1) Medical and other diagnostic examinations, when not otherwise obtainable, for the purpose of determining an applicant's or recipient's eligibility or potential for rehabilitation or training.

(2) Medical care, when not available through other agencies, to assist in restoring a recipient to a condition of self-support.

(b) The social services official shall:

(1) Require an applicant or recipient, as a condition of eligibility for assistance and care to:

(i) undergo a medical examination or other diagnostic assessment necessary for the purpose of determining his eligibility or suitability for training or rehabilitation.

(ii) accept referral to or enroll in a program of vocational rehabilitation or training when such as deemed appropriate and when the recipient has no reasonable objection.

(2) Require an unemployed applicant or recipient who has a known history of drug abuse and who is unable to provide medical verification necessary form him to be declared employable, to accept referral to and to participate in an approved treatment program in accord with the following:

(i) if the applicant or recipient is known to or has a preference for a particular recognized agency, his choice shall be given consideration;

(ii) if enrollment in a treatment agency of his choice is not available, he must choose enrollment in an agency where placement is immediate until an opening occurs in his preferred agency; and

(iii) an individual who refuses treatment from a recognized agency or makes himself unavailable for treatment or terminated his treatment program shall be considered ineligible for public assistance and such ineligibility shall continue until the individual has demonstrated his willingness to cooperate by actual participation in an approved treatment program for a period of 30 days; except that where an individual is destitute, and shelter and maintenance are not otherwise available, they shall be provided on an in-kind basis during the 30 day period.

(3) Refer to the local agency's services division to deal with personal factors, such as personality, behavior characteristics, attitude to work, or lack of skills and family problems which prevent or limit persons in their achievement of stable employment.

(4) Identify the possible need for help from public and voluntary agencies and other community resources, in the field of vocational rehabilitation, health, vocation and educational facilities and programs including such agencies as rehabilitation centers and workshops, cooperating hospitals or clinics, community action agencies and neighborhood centers and refer the recipient to the local agency's division of services for such help.

(5) Insure that staff is informed of the functions and services of available training and rehabilitation services, both public and private.

(6) Identify the recipient's need for literacy training and refer to the local agency's division of services for such help.

(7) Identify each marginally and potentially employable person and refer to the local agency's division of services for the restoration of health, aptitude, and capabilities or the development of new aptitudes and skills so that they may receive manpower services.

(8) Identify the recipient's need for restorative medical services including provision of hearing aids, eye glasses and prosthetic devices through the MA program and refer to the local agency's division of services when such services are not available through the MA program.

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Effective Date: 
Monday, December 4, 1972

Section 368.7 - Special category requirements

Section 368.7 Special category requirements. (a) Blindness. (1) Blindness shall be established by the New York State Commission for the Visually Handicapped in accordance with department regulations.

(2) Where there is presumption that any applicant for AABD is legally blind, an eye examination shall be completed and the findings reported to the Commission for the Visually Handicapped except where the person's physical or mental condition makes such examination impracticable.

(b) Disability. (1) An applicant for or a recipient of public assistance who is already receiving OASDI disability benefits shall be certified as AD by the local social services district upon documentation of his OASDI status; or

(2) The determination and certification of permanent and total disability shall be made by the review team on a review and evaluation of the medical and social data referred to the review team on the forms prescribed for that purpose.

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Section 368.8 - Decision.

368.8 Decision. A determination of categorical eligibility or ineligibility for AABD shall be made within the time limits specified by department regulations.

 

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Section 368.9 - Determination of grant and its payment.

368.9 Determination of grant and its payment. (a) Allowances and grants to the aged, blind or disabled shall be determined and payments shall be made in accordance with applicable department regulations.

(b) Grants to a child or minor who is blind or disabled shall be made as follows:

(1) A grant for a blind child or minor under age 18 who is not emancipated, shall be made to a related adult member of the household who is caring for the child.

(2) A grant for an emancipated minor shall be made directly to the minor unless he is physically or mentally unable to handle the grant. In such case, a protective payment shall be made in accordance with department regulations.

(3) Grants to cases receiving vocational rehabilitation services from Vocational Rehabilitation Service or Office of Vocational Rehabilitation. A social services district shall grant or continue AABD assistance to an eligible applicant or recipient during the period such individual is receiving vocational rehabilitation services from VRS or OVR, insofar as need for assistance is not caused by or increased by the program of rehabilitation. Such assistance shall not include the allowance provided by the rehabilitation agency to cover the cost of vocational services, which may include physical restoration services, training opportunities, necessary books and tools, and other related services required for the purpose of restoring, developing or improving the working ability of handicapped persons. When a person is in receipt of such services and AABD, cooperative planning shall be entered into by the two agencies based on the following principles:

(i) The social services district, which is granting AABD to an individual applying for or receiving vocational rehabilitation services, shall continue the grant during the period he is receiving training, provided he remains otherwise eligible.

(ii) When the vocational rehabilitation program requires the recipient to reside out of district or out of State, AABD assistance shall be continued as long as the recipient remains in training and is otherwise eligible.

(iii) In instances where there is no duplication of shelter costs because of the new residence plan required by the rehabilitation services, the shelter item shall be included in the grant.

(iv) Upon notification that the recipient has been accepted for vocational rehabilitation services, the social services official shall provide that agency with a detailed statement of the current grant and of any subsequent change during the training period.

(v) If the recipient who is in training requires medical treatment or hospitalization not directly connected with the treatment of conditions which directly affect the employability of the recipient; this shall be provided under MA.

 

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Section 368.10 - Living arrangements.

368.10 Living arrangements. (a) Assistance and care may be provided in the recipient's own home or some other suitable family home or in any of the following when operated in compliance with rules of the board and department regulations; a private convalescent home, proprietary or non-profit; a private incorporated non-profit home for the blind or aged, or a private institution for adults proprietary or non-profit.

(b) Allowance for personal expenses, including clothing and incidentals, may also be granted in a nursing home or intermediate care facility.

(c) Whenever practicable, assistance shall be provided to a person in his own home. When care in his own home is not practicable, the social services official shall provide care suited to the person's particular situation. Particular emphasis shall be given to this factor when the mental or physical condition of the applicant or recipient and the absence of close relatives places greater responsibility for such decision upon the social services official.

(d) If and so long as Federal aid is available for care therein AD may also be provided in the following: a facility operated or supervised by the State Narcotic Addiction Control Commission, and a residential facility for the mentally retarded, approved, licensed or operated by the State Department of Mental Hygiene.

(e) Compliance with Civil Rights Act of 1964. Applicants for or recipients of AABD shall not be placed in or referred to a public, private non-profit or private proprietary facility which discriminates on the basis of race, color or national origin contrary to the requirements of title VI of the Civil Rights Act of 1964 or violates section 40 of the Civil Rights Act of the State of New York, nor may services be provided which would be supportive of such facility or vendor's payment made thereto.

 

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Section 368.11 - Character of aid.

368.11 Character of aid. (a) Assistance and care shall include aid, care, support, referral for service and such other special aid as the condition of the person may make necessary excluding medical or surgical care, nursing and other services and care available under medical assistance for needy persons (MA) .

(b) Such assistance and care may not be given in a public institution other than a "medical institution." A medical institution includes an intermediate care facility public or private, and a public institution means an institution maintained by the State or local governmental unit including a school, or penal correctional facility, but not a facility operated or supervised by the Narcotics Addiction Control Commission or a residential facility for the mentally retarded licensed or operated by the Department of Mental Hygiene.

 

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Section 368.12 - Protective payments in the AABD program.

368.12 Protective payments in the AABD program. The need for protective payments for AABD recipients shall be determined in accord with department regulations.

 

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Section 368.13 - Determination of continuing eligibility.

368.13 Determination of continuing eligibility. (a) A recipient of AABD shall complete and sign a certification of need (Form DSS-1229) and shall submit such form by mail or in person at least once a year. The determination of continuing eligibility shall include reconsideration of all variable factors of need and eligibility. Particular attention shall be given to any changes in coverage or amounts of benefits, such as disability insurance payments, retirement and disability annuities, veterans' compensation and pensions and workmen's compensation, and to any change in the contributions or ability to contribute of legally responsible relatives.

(b) Change of residence or absence from the district of administration. When a recipient leaves the district of administration the agency shall determine if such absence is temporary or permanent and shall determine its continuing responsibility for the recipient.

(c) Reclassification of blindness.

(1) Where medical treatment or surgery may have resulted in the partial restoration of vision of a blind recipient, a reexamination may be indicated. The report of such examination of Form DSS-542 shall be submitted to the Commission for the Visually Handicapped for reclassification.

(2) Where an eye condition of a recipient who has not been classified as blind, increases in severity, or a recommendation of a review team or other evidence raises a presumption of blindness, an eye examination shall be completed to determine whether or not the recipient is legally blind.

(d) Permanent and total disability. Periodic redetermination and recertification of permanently and totally disabled status shall be made in accordance with department regulations and procedural instructions.

(1) For Group I cases, the status of permanently and totally disabled shall not be considered a factor subject to change. Therefore, the determination of continuing eligibility shall be made by the agency without new medical evidence and without referral again to the review team unless new medical or social evidence indicates improvement or recovery.

(2) For Group II cases, the status of permanently and totally disabled shall be considered a variable factor of eligibility and shall be subject to redetermination for continuing eligibility certification by the review team each 12 months unless prior to the recall date there is evidence of change in the person's condition.

 

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Section 368.14 - Reapplication.

368.14 Reapplication. (a) Reapplications shall be processed in the same way as new applications. When an individual reapplies after he has been certified as AD--Group I or Group II--and his case is closed for reasons unrelated to a change in disability (e.g., increased social security or other benefits) there is no need for a review team evaluation unless:

(1) twelve months or more have elapsed since date of last case closing;

(2) the individual has, in the interim, engaged in a useful occupation; or

(3) the individual has, in the interim, had a significant change in treatment

such as major surgery, a stay in a rehabilitation center or a period of diagnostic hospitalization.

(b) Cases reopened as Group II in accordance with above instructions, without review team review shall be reviewed at the date which had been set before the case was closed. If reapplication of Group II cases occurs subsequent to the date set for review by the review team the agency secures and transmits any additional data requested at previous review and all previous forms DSS-486, DSS-1151 and DSS-639.

 

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Part 369 - FAMILY ASSISTANCE OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 369

FAMILY ASSISTANCE

(Statutory authority: Social Services Law, Sections 20, 34, 131, 355)
Sec.
369.1 Application
369.2 Determination of initial eligibility
369.3 Determination of grant and its payment
369.4 Determination of continuing eligibility
369.5 Determination of category
369.6 Decision, appeal and fair hearing
369.7 Mandatory referral to local Child Support Enforcement Unit

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Part 370 - SAFETY NET ASSISTANCE

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Effective Date: 
Wednesday, April 22, 1998
Statutory Authority: 
Social Services Law, Sections 17, 20, 34, 74-h, 104-a, 131, 131-a(1), 134-a, 139-a, 153, 158, 158-a(1), 211; L. 1953, ch. 562

Section 370.1 - Application.

Section 370.1 Application. (a) Relationship to other regulations of the office. In addition to this Part, regulations of the office generally governing the programs of public assistance and care including application, determination of initial and continuing eligibility, standards of assistance, budgeting, provision of services, notification of decision, authorization and payment of grants, handling of inquiries, complaints, appeals and requests for fair hearings and investigations of fraud apply to safety net assistance.

(b) State-prescribed forms. Any application for safety net assistance or redetermination must be made on the State-prescribed form in accordance with Parts 350 and 351 of this Subchapter.

 

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Section 370.2 - Determination of initial eligibility.

370.2 Determination of initial eligibility. Safety net assistance includes assistance granted to veterans under existing laws, and assistance to persons not residing in their own homes when such persons reside in other living situations for which a safety net assistance grant may be provided as specified in Part 352 of this Subchapter. Safety net assistance does not include medical assistance, foster care of children, or care classifiable under the law as public institutional care.

(a) Investigation. When practicable, responsibility must be placed upon the applicant for safety net assistance to provide verified information concerning his or her previous maintenance, loss of income and the extent and duration of current need. Both the method and content of investigation must be aimed at assisting the applicant to return to self-support and fully utilize resources related thereto.

(b) Financial requirements. The initial determination must include consideration of each of the following eligibility factors:

(1) Previous maintenance and reason for application. For each member of the household applying for assistance, the following must be determined: the source and amount of previous income or maintenance; the reason and date of its discontinuance; presumptive eligibility for benefits relating to loss of income; and employability and availability for employment.

(2) Presumptive duration of need. On the basis of all available facts, an evaluation must be made of the following: the probable duration of need based upon consideration of the applicant's employability and the availability of employment in the current labor market; his or her presumptive eligibility for work-related benefits; and the availability of vocational training, rehabilitation services, and the availability or potential availability of other resources that will make his or her need for financial assistance short-term.

(3) Ability of relatives to support. (i) For both short-term and long-term cases, the social services official must determine the existence and whereabouts of the legally responsible relatives of persons for whom application is made and of the ability of such relatives to support. When legally responsible relatives are able to provide support to the applicant and are not doing so, the social services official must implement procedures to enforce support.

(ii) In considering the ability of a legally responsible relative to support, the offer of a home must be carefully explored and evaluated. The evaluation must include a determination of the reason for the separation which had occurred, and if children, minors or other persons are members of the applicant's family unit, the advisability of a change in their living arrangements.

(iii) Such an offer of a home does not preclude consideration of eligibility for safety net assistance. If the social services official determines that the legally responsible relative is otherwise able but unwilling to contribute to the support of the applicant, the social services official must initiate appropriate action to enforce support.

(iv) Social services officials may evaluate the willingness of socially responsible persons to assist in whole or in part in the support of applicants. Where socially responsible persons assisted in the past, the situation must be reviewed to determine current availability of such support.

(v) In considering the ability of socially responsible persons to support, the offer of a home by a person must be included in the exploration and evaluation of resources. In considering the offer of a home, there must be a careful evaluation of the suitability of such resource in the individual situation, including the physical and mental health of the applicant, his or her current living arrangements, and his or her personal wishes and those of his family.

(4) Not eligible for or receiving assistance as Family Assistance

(FA). For each member of the household included in the safety net assistance application it must be determined that he or she is not eligible to receive FA.

(5) Potential eligibility for SSI. (i) Each applicant for safety net assistance or his or her authorized representative must sign a repayment of interim assistance authorization.

(ii) Subject to the conditions set forth in the interim assistance sections of this Part, each applicant for safety net assistance home relief who, based on a medical statement documenting or indicating existence of a physical or mental impairment, reasonably appears to qualify for SSI benefits, or who during the safety net assistance application process demonstrates behavior or symptoms suggesting potential SSI eligibility, or who has reached or will before the end of the following calendar month reach his or her 65th birthday or who otherwise appears to be eligible for SSI benefits must also be required to apply for SSI benefits, cooperate with the SSI eligibility determination process, and appeal any denial of his or her initial SSI application and exhaust the available administrative remedies.

(iii) Any medical statement used in establishing potential SSI eligibility along with any other medical documentation available must be attached by the social services district to the SSI Referral and Certification of Contact Form when the applicant is referred to the Social Security Administration (SSA) to file for SSI benefits.

(iv) Each social services district must establish procedures for:

(a) promptly identifying and assessing those Safety Net Assistance and FA applicants and recipients who are potentially eligible for SSI;

(b) providing medical and related information to persons referred to the SSA and assisting the client in obtaining such information if there has been no prior diagnosis or treatment;

(c) establishing an SSI tracking system to determine whether Safety Net Assistance and FA applicants or recipients who are potentially eligible for SSI have completed the Federal disability benefit application and appeals processes;

(d) providing assistance to Safety Net Assistance and FA applicants and recipients in pursuing SSI benefits and, when necessary, assisting such applicants and recipients in appealing the denial of such benefits; and

(e) referring Safety Net Assistance and FA applicants and recipients to not-for-profit agencies and not-for-profit legal services corporations receiving grants under section 35 of the Social Services Law, if any.

(6) Transfer of property.

(i) A person is not eligible for safety net assistance who has made a voluntary assignment or transfer of real or personal property for the purpose of qualifying for such aid. A transfer of such property made within one year prior to the date of application is presumed to have been made for the purpose of qualifying for such assistance.

(ii) If the agency determines that the transfer was not made to qualify for safety net assistance, then such transfer or assignment will not constitute a basis for denial.

(7) No person receiving public institutional care may receive safety net assistance.

(c) Nonfinancial requirements. The following requirements must be evaluated to establish initial eligibility:

(1) Age. (i) The applicant must furnish the date of birth for each person applying for assistance. Documentation of age is required only where such verification is necessary to classify a person as eligible or presumptively eligible for a Federal category, to determine employability, or to establish the right of a minor between the ages 16 and 18 years to receive safety net assistance in his or her own name as an emancipated minor.

(ii) An emancipated minor, as defined in Part 349 of this Subchapter, may be considered eligible for safety net assistance in his or her own right, provided he or she is not living with a guardian or relative qualified to receive a grant of FA.

(2) Relationship of applicant to claimed dependents. The applicant must furnish information regarding the relationship of all members of the household to each other, including those who are applying for assistance and those who are not. Documentation of relationship is required whenever the claimed validity of a relationship is in doubt in order to explore the possibility of securing necessary services and care, and to establish the responsibility of legally responsible relatives for the support of the safety net assistance applicants.

(3) Social security number. (i) Any applicant for or recipient of safety net assistance or any other individual whose needs are considered in determining the amount of assistance regardless of age must furnish or apply for a social security number as a condition of eligibility.

(ii) The social services official must assist the applicant or recipient in verifying or obtaining a social security number.

(iii) Failure to cooperate will result in denial of assistance to the noncooperating individual or individuals and the needs of that individual or individuals will not be considered in determining eligibility or degree of need for the remaining eligible family members.

(4) Residence within the State. Safety net assistance must be granted to eligible persons in accordance with sections 311.1 and 352.29 of this Title.

(5) Living arrangement. Safety net assistance must be granted to an eligible needy person in his or her abode or habitation whenever possible. Safety net assistance may also be provided to an eligible individual in the home of a relative or friend. In addition, safety net assistance allowances may be granted to persons not living in their own homes when the living arrangement is one specified in Part 352 of this Subchapter.

(6) The following persons, who are not eligible for FA, if not in sanction status for a program authorized by this Title, are eligible for safety net assistance if all other eligibility requirements are met:

(i) Families who have received FA and other assistance funded under Public Law 104-193 (the Personal Responsibility and Work Opportunity Reconciliation Act of 1996) for periods of time equal to the maximum durational limits in section 369.4(d) of this Title.

(ii) Adult(s) without a dependent child living with them.

(iii) Families in which the head of household or an adult household member is determined to be unable to work by reason of his or her need for treatment for alcohol or substance abuse in accordance with section 351.2(i) of this Title.

(iv) Individuals under the age of 18 who are childless and have no adult relative with whom to live.

(v) Members of a household in which the head of household or an adult household member refuses to comply with screening or formal assessment for alcohol or substance abuse in accordance with section 351.2(i) of this Title.

(vi) Members of a household in which the head of household or an adult household member fails to comply with an alcohol or substance abuse rehabilitation program in accordance with section 351.2(i) of this Title.

(vii) Qualified aliens legally residing in the United States who are not eligible for FA solely based on the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (section 404(i) of Public Law 104-193) or aliens permanently residing under color of law, but not qualified.

(viii) Aliens paroled into the United States pursuant to Section 212(d) (5) of the Immigration and Naturalization Act for a period of less than one year.

(7) Welfare of child or minor. Where children or minors are included in the application, the home situation must be considered to determine whether the welfare of the child or minor will be safeguarded.

(8) Alcoholism and drug abuse rehabilitative services. (i) As a condition of eligibility, applicants for and recipients of safety net assistance must comply with appropriate drug and/or substance abuse screening and assessment procedures in accordance with section 351.2(i) of this Title.

(ii) As a condition of eligibility, applicants for and recipients of safety net assistance must participate in and comply with appropriate drug and/or substance abuse rehabilitation programs in accordance with section 351.2(i) of this Title.

(9) Compliance with child support enforcement program (IV-D) eligibility requirements. Each person who is applying for or receiving safety net assistance and each person on whose behalf an application is made therefore must, as a condition of both initial and continuing eligibility for assistance, comply with requirements contained in section 369.2(b) of this Title.

(10) A person who is eligible for benefits under the refugee cash assistance program as defined in Part 373 of this Title is not eligible for safety net assistance.

(11) Repayment of overpayments. As a condition of eligibility for safety net assistance, each applicant for safety net assistance must:

(i) sign an agreement, on a form prescribed by the office, which provides that, if it is determined that money is owed to the social services district because of overpayments of safety net assistance to the applicant while a recipient of safety net assistance, the applicant agrees to repay any such money that remains due after the applicant ceases to receive safety net assistance; and

(ii) sign an assignment of the individual's future earnings, on a form prescribed by the office, to secure the repayment of any money that is determined, after providing the opportunity for a fair hearing, to be owed to the social services district because of overpayments of safety net assistance to the applicant while a recipient of safety net assistance. The prescribed form must include the following notice: "THIS AGREEMENT AUTHORIZES THE SOCIAL SERVICES DISTRICT TO RECOVER ANY OVERPAYMENT OF YOUR PUBLIC ASSISTANCE BENEFITS BY COLLECTING THE AMOUNT OF THE OVERPAYMENT DIRECTLY FROM YOUR FUTURE WAGES. IF YOU FAIL TO MAKE THE PAYMENTS REQUIRED BY A REPAYMENT AGREEMENT BETWEEN YOU AND THE SOCIAL SERVICES DISTRICT, THE SOCIAL SERVICES DISTRICT WILL FILE THIS AGREEMENT WITH YOUR EMPLOYER AND RECOVER THE OVERPAYMENT DIRECTLY FROM YOUR WAGES." In addition, the assignment of future earnings and the enforcement thereof must comply with all requirements of article three-A of the Personal Property Law. The social services district may file the assignment of future earnings with the employer of the assignor only if the assignor fails to make payments of money owed to the social services district in accordance with the repayment agreement.

(12) A person who is eligible for benefits under the Fish-Wilson program as defined in Part 375 of this Title is not eligible for safety net assistance.

 

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Section 370.3 - Emergency and short-term cases.

370.3 Emergency and short-term cases.

(a) General. Social services districts must authorize safety net assistance to provide for the effective and prompt relief of identified needs which cannot be provided for under Emergency Assistance to Needy Families with Children (EAF) or Family Assistance (FA), including presumptive eligibility for FA. Emergency and short-term assistance is limited to the items, conditions and amounts specified in Part 352 of this Subchapter. The district must provide necessary supervision to such cases in order to modify or terminate grants as quickly as circumstances require. An emergency or a short-term case is a case in which need is presumed to continue for a period of less than three months; provided, however, that cases in which frequent reapplications for assistance are made are not considered emergency or short-term.

(b) Eligibility for emergency safety net assistance. Social services districts must authorize emergency safety net assistance only under the following conditions:

(1) there is an identified emergency need. An emergency is a serious occurrence or situation needing prompt action;

(2) the individual or household is without income or resources immediately available to meet the emergency need and the individual's or household's gross income at the time of application does not exceed 125 percent of the current Federal income official poverty line, as defined and annually revised by the Federal Office of Management and Budget. For purposes of determining eligibility for assistance pursuant to this section, these annually revised poverty lines are effective April 1st through March 31st of each fiscal year. If the emergency is the result of a fire, flood or other like catastrophe or if the emergency assistance is granted in accordance with sections 352.5(c) - (e) of this Title, the individual's or household's gross income at the time of application can exceed 125 percent of the Federal income official poverty line;

(3) the emergency need cannot be met under the Emergency Assistance to Needy Families with Children, the Home Energy Assistance Program, FA or Safety Net Assistance programs;

(4) the applicant is not disqualified from receiving recurring assistance or subject to a durational sanction, or the emergency did not arise because the applicant had previously been disqualified or sanctioned for failure to comply with the non-financial requirements of this title; and

(5) in an application for an allowance to pay shelter arrears where the applicant reasonably demonstrates an ability to pay shelter expenses, including any amounts in excess of the appropriate local agency maximum monthly shelter allowance in the future. In determining an applicant's ability to pay shelter expenses, a social services district must consider the applicant's ability to make payments under any repayment agreements entered into in accordance with this paragraph. However, when in the judgment of the local social services official, the individual or household has sufficient income or resources to secure and maintain alternate permanent housing, shelter arrears need not be paid to maintain a specific housing accommodation. To receive assistance to pay shelter arrears, the applicant must sign an agreement to repay the assistance in a period not to exceed 12 months from receipt of such assistance. The repayment agreement must set forth a schedule of payments that will assure repayment within the 12-month period, and must specify the frequency of the payments, the due date of the first payment, the address to where payments must be made and the consequences of failing to repay the assistance as agreed. Subsequent assistance to pay arrears may not be granted unless there are no past-due amounts owed under any such repayment agreement. The social services district, in addition to any rights it has pursuant to the social services law, may enforce the repayment agreement in any manner available to a creditor.

(c) Emergency safety net assistance must not be used to meet needs during a period of ineligibility for public assistance due to the receipt of a lump sum.

(d) Determination. When emergency need is met prior to the completion of investigation, the evidence on which the presumption of eligibility and need is based must be documented in the case record.

(e) Authorization. Where the need for safety net assistance is shortterm or where emergency needs are met prior to the completion of an investigation, assistance must be authorized on a one-time basis or for the period during which the need is expected to continue. In cases where the need is deemed to be emergency or short-term, the grant may be limited to those items for which there is immediate need. When emergency or short-term safety net assistance is granted, the district may accept a deed for real property and/or a mortgage pursuant to section 106 of the Social Services Law as security for the value of assistance granted. The months in which any individual receives recurring emergency safety net assistance, must count against the two-year (twenty-four month) cumulative total of safety net cash assistance in accordance with section 370.4(b)(1) of this Title. Recurring emergency safety net assistance is assistance authorized for a time period to meet the continuing needs of the applicant rather than assistance authorized on a one-time basis.

(f) Mass emergency assistance. When emergency needs occur on a mass basis, such as the need for mass feeding or clothing distribution and other essential items, these needs must be considered as emergency and short-term and provided for in accordance with subdivision (a) of this section. Names of persons requesting such assistance must be recorded on form DSS-880, Register of Application and Authorization for Emergency Assistance. This form constitutes their application. The DSS-880, when signed by the local social services official, serves as the authorization of such assistance.

(g) Town social service officer. When application is made to a town social service officer, he or she may make an emergency grant of safety net assistance and immediately forward the application to the county department of social services for investigation. Such investigation must be completed as promptly as possible, at least within 30 days.

 

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Section 370.4 - Determination and payment of the grant.

370.4 Determination and payment of the grant. (a) General. Determination of initial and continuing eligibility and the amount of the grant must be based upon the State-established standards of assistance. Needs must be determined, resources explored and utilized, and the budgetary method applied, as required by Part 352 of this Subchapter. The form and frequency of the grant must be appropriate to individual case circumstances.

(b) Payment of grants. (1) Cash assistance. Except as provided in subparagraph (i) of this paragraph, safety net assistance must be granted in cash except when the granting of cash may be deemed inappropriate by the social services district because of an inability to manage funds, or because less expensive or more easily controlled alternative methods of payment are available, or when vendor payments are made to landlords on behalf of individuals residing in public housing, or for similar other reasons as established by Part 381 of this Chapter. However, where an individual has so requested, safety net assistance may be granted in whole or in part by restricted payment. Safety net cash assistance is limited as follows:

(i) Cash assistance cannot be provided to:

(a) families in which the head of household or an adult household member is determined to be unable to work by reason of his or her need for treatment for alcohol or substance abuse in accordance with section 351.2(i) of this Title;

(b) members of a household in which the head of household or an adult household member refused to comply with screening or formal assessment for alcohol or substance abuse in accordance with section 351.2(i) of this Title;

(c) members of a household in which the head of household or an adult household member fails to comply with an alcohol or substance abuse rehabilitation program in accordance with section 351.2(i) of this Title;

(d) families which are ineligible for FA because an adult in the family has exceeded the maximum durational limit in accordance with section 369.4(d) of this Title, unless the adult is exempt from employment requirements or is HIV positive and not determined to be unable to work by reason of his or her need for treatment for alcohol or substance abuse in accordance with section 351.2(i) of this Title; and

(e) persons who have received safety net cash assistance for a twoyear (twenty-four month) cumulative total in a lifetime, including the receipt of recurring emergency safety net cash assistance, unless an adult head of household is exempt from work requirements or is HIV positive and not determined to be unable to work by reason of his or her need for treatment for alcohol or substance abuse in accordance with section 351.2(i) of this Title.

Persons eligible for safety net assistance who cannot receive cash assistance pursuant to this subparagraph, must be provided with safety net non-cash assistance.

(ii) Safety net cash assistance must be limited to a two-year (twentyfour month) cumulative total for eligible persons not exempt from employment requirements or not HIV positive and not determined to be unable to work by reason of his or her need for treatment for alcohol or substance abuse in accordance with section 351.2(i) of this Title. The month in which a safety net cash assistance benefit is issued, by any method of payment, counts against the two-year (twenty-four month) limit. This limitation applies to individuals in receipt of safety net assistance or Home Relief on or after August 4, 1997. An individual or head of household who is exempt from employment requirements or HIV positive and not determined to be unable to work by reason of his or her need for treatment for alcohol or substance abuse in accordance with section 351.2(i) of this Title, continues to be eligible for cash assistance indefinitely.

(iii) The months in which any individual receives recurring emergency safety net assistance must count against the two-year (twenty-four month) cumulative total of safety net cash assistance.

(iv) The cumulative total of months in which an individual received safety net cash assistance benefits is applied against the cumulative 60 month limit on the receipt of FA in accordance with section 369.4(d) of this Title.

(2) Non-cash assistance. Safety net assistance paid as non-cash assistance must be paid in the following manner and in the following order:

(i) Shelter assistance. A district must make a payment for shelter by direct payment, two-party check or other form of restricted payment up to the maximum amount established by Part 352 of this Title. The district may make a payment for a recipient's shelter in excess of such maximum, at the request of the recipient, limited by a sufficient budget deficit amount. Payments for shelter are subject to the provisions of Social Services Law, section 143-b. A district must make payment for shelter by two-party check upon the request of the recipient, provided that the recipient has not demonstrated persistent failure to make shelter payments as defined in section 381.3 of this Title. The district must provide the recipient promptly with proof of payment, upon request of the recipient.

(ii) Utility assistance. A district must make a direct payment, payment by two-party check or other form of restricted payment on behalf of recipients of safety net assistance who pay separately for utilities. Payment for utilities must include payment for fuel for heating on behalf of recipients who are eligible for a fuel for heating allowance pursuant to section 352.5 of this Title. Payments for fuel for heating may not exceed the fuel for heating allowance except that a district may make a payment in excess of such amount at the request of the recipient. The district must provide the recipient promptly with proof of payment, upon request of the recipient.

(iii) Personal needs allowance. A district must provide each household with a personal needs allowance, limited by a sufficient budget deficit amount, equal to 20 percent of the sum of the statewide standard of need, statewide home energy allowance and the statewide supplemental home energy allowance, for the appropriate household size, in accordance with sections 352.2 and 352.29 of this Title.

(iv) Other assistance. Any remaining budget deficit amount must be provided on a non-cash basis, provided that an electronic benefit transfer system is operating in the district in which the recipient resides. Districts which do not have an electronic benefit transfer system operating, must provide any remaining deficit amount as a cash benefit to the recipient.

(3) Persons not residing in their own homes. Persons residing in certain residential settings set forth in this paragraph have living arrangements different from those of persons residing in their own apartments or homes. Persons living in those living arrangements have a higher standard of need than the maximum public assistance standards of need for persons who maintain their own homes. Payments for persons in such residential settings do not fit in the ordinary payment methods for safety net non-cash assistance. For persons receiving non-cash safety net assistance in accordance with paragraph (2) of this subdivision who are residing in room and board, approved residential programs for victims of domestic violence operated in accordance with Parts 452, 453, 454 or 455 of this Title, maternity homes, family care, residential care, drug abuse control facilities, or family shelters operated in accordance with Part 900 of this Title the standards of assistance and the amounts of the personal needs allowances are set forth in section 352.8 and Parts 408 and 900 of this Title. Payments to such facilities or providers of room and board for persons who receive non-cash safety net assistance and personal needs allowances paid to such persons shall be in the amounts set forth in section 352.8 and Parts 408 and 900 of this Title.

 

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Section 370.5 - Determination of continuing eligibility.

370.5 Determination of continuing eligibility. Continuing eligibility for safety net assistance must be determined in accordance with the regulations of the office governing the programs of public assistance, including this Part and Parts 352, 369 and 385 of this Title and applicable regulations of the Department of Labor. This determination must include reconsideration of all factors of initial eligibility which are subject to change, including financial need, employment and availability for employment. It must include, where indicated, consideration of presumptive eligibility for FA and classification and transfer to that category. Each recipient of safety net assistance or his or her authorized representative must sign a repayment of interim assistance authorization. If a recipient, based on a medical statement documenting or indicating existence of a physical or mental impairment, reasonably appears to qualify for SSI benefits, or during the recertification process demonstrates behavior or symptoms suggesting potential SSI eligibility, or has reached or will before the end of the following calendar month become 65 years of age, or otherwise appears to be eligible for SSI, his or her continuing eligibility for safety net assistance is subject to his or her efforts to obtain SSI benefits and compliance with the conditions set forth in the interim assistance provisions of section 353.1 of this Title. Any determination that pursuit of SSI benefits is necessary must be included in the district's SSI tracking procedures. Review of the following factors, where applicable, must also be made:

(a) Residence--absence from the district of administration. Absence from the district of administration must be evaluated in accordance with Parts 310, 311, 349 and 351 of this Title and sections 62, 117 and 118 of the Social Services Law.

(b) Living arrangements. The safety net assistance recipient's place of residence must be reconsidered in determining continuing eligibility in accordance with provisions of this Title applicable to determining initial eligibility. Whenever possible, dependent persons should be given assistance in their own residence or efforts made to return them to their own residence when it has been determined that another form of care is not appropriate or no longer required.

(c) Continuance or change in short-term status. If assistance is needed beyond the short-term period as defined in the emergency and shortterm cases section of this Part, policies governing the meeting of needs and the utilization of resources for long-term assistance must be applied in accordance with Part 352 of this Subchapter.

 

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Section 370.6 - Appeals by social services officials.

370.6 Appeals by social services officials. (a) A social services official responsible in an individual case for either the authorization of assistance or the investigation of the application for assistance and the making of a recommendation relative to such application has the right to appeal to the office from a decision made in such case by another social services official.

(b) The appellant social services official must file with the office an appeal in writing setting forth the basis for his or her determination or decision, the action or determination sought to be reviewed, and a statement in justification of his or her determination or decision. Three copies of such appeal must be delivered in person or by certified mail to the office.

(c) The office must hold a hearing in accordance with the requirements of section 22 of the Social Services Law.

(d) The notice of appeal may be filed at the time the decision to grant assistance is reached and may be prior to or simultaneous with the issuance of the grant. The filing of an appeal does not represent a request for approval to grant assistance.

(e) Where a town social services officer fails or refuses to issue a grant for safety net assistance which has been recommended by a county social services official, the county social services official must apply to the office for a review of the town's action and issue assistance to the safety net assistance applicant pending the office's review and decision.

 

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Section 370.7 - Safety net assistance supplementation.

370.7 Safety net assistance supplementation. Safety net assistance must not be denied or discontinued solely on the basis that the applicant/recipient is in receipt of SSI.

 

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Section 370.8 - Shelter residents.

370.8 Shelter residents. Social services districts must:

(a) supply public shelter residents with information regarding their eligibility to apply for safety net assistance; and

(b) strongly encourage public shelter residents to apply for safety net assistance.

 

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Section 370.9 - Referral to local child support enforcement unit of applicants for or recipients of safety net assistance

Section 370.9 Referral to local child support enforcement unit of applicants for or recipients of safety net assistance.

When the household of an applicant for or recipient of safety net assistance includes a person under the age of 21 years whose parent or stepparent is absent or whose paternity is not legally established, the local income maintenance unit must refer the applicant or recipient to the local child support enforcement unit, pursuant to Section 369.7 of this Part.

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Section 370.10 - Temporary Shelter Supplements (TSS)

370.10 Temporary Shelter Supplements (TSS).

(a) Scope. This section governs the provision of supplements known as Temporary Shelter Supplements (TSS). Such supplements may be provided to recipients of Safety Net Assistance (SNA) who would otherwise be eligible for Family Assistance (FA) but for the time limits on receipt of such assistance and who meet the conditions set forth below. Such supplements are provided pursuant to an authorization and appropriation in the State budget. This section shall be effective only for so long as a specific appropriation in the State budget is made therefore.

(b) Application of other regulations. TSS is provided only to recipients of non-federally participating SNA program. TSS recipients are subject to all the regulations of this Title governing SNA unless otherwise specified in this section.

(c) District responsibilities. All social services districts authorized to provide a TSS benefit must:

(1) Upon this office's eligibility determination for a TSS benefit or the local districts determination of eligibility for such a benefit, if directed by this office to make such determination, provide such benefits to eligible individuals.

(2) Ensure that all SNA recipients in receipt of a TSS benefit comply with all training requirements and case management services.

(3) Periodically report to this office on the recipients of TSS at such times and in such manner as this office may direct.

(d) Eligibility requirements for applicants who are not receiving a supplemental shelter allowance when they apply for TSS.

(1) Applicants for TSS who were not receiving a supplemental shelter allowance must apply for TSS on a form prescribed by this office.

(2) To be eligible for TSS, there must be a court proceeding concerning the nonpayment of rent, maintenance or mortgage where the applicant resides. The application shall include documentation demonstrating that the case is on file with a court including the caption, index number and an official court stamp or signature.

(3) The applicant must reside in a social services district in which a lawsuit challenging the adequacy of the shelter allowance maxima in the FA program was commenced prior to December 1, 2001 and preliminary relief has been ordered.

(4) Receipt of TSS must enable the applicant to remain in his or her housing. The district may pay up to $3,000 or six times the monthly rental obligation in full satisfaction of tenant liability for rent arrears, whichever is higher, in accordance with paragraph (4) of subdivision (f) of this section. This office may require the applicant to move to a similar priced apartment in lieu of paying arrears.

(e) Eligibility requirements for all applicants for TSS, including persons receiving a supplemental shelter allowance when they apply for TSS.

(1) All individuals requesting a TSS benefit must be eligible for SNA, have exhausted their FA eligibility as a result of the 60 month time limitation and be eligible for FA except for the application of the time limits.

(2) The TSS benefit must not exceed the amounts established in subdivision (f) of this section.

(3) The public assistance recipient must be the tenant of record and have a lease for the housing or obtain an agreement in writing to stay for at least one year if the tenancy is not covered by rent regulation.

(4) In addition, the following case circumstances must be met in order to receive a TSS benefit:

(i) No one in the public assistance case can be sanctioned.

(ii) The public assistance household must contain a child under the age of 18 or under the age of 19 and a full-time student.

(iii) The household cannot have willfully lost section 8 assistance provided by the federal Department of Housing and Urban Development, without good cause, within the past two years.

(iv) The household must apply for section 8 assistance, if permitted to do so, and take the benefit, if offered.

(v) The household must verify household composition and rent must be paid by non public assistance (NPA) household members as described below.

(vi) Any changes that affect TSS eligibility must be reported to this office, if acting on behalf of the local district, and the district within 10 days of the change. Failure to report any change may result in permanent discontinuance of TSS benefits.

(5) NPA household members, including persons not eligible for public assistance due to their immigration status and recipients of supplemental security income (SSI) or foster care, must agree to contribute either their prorata share of the rent or 30 percent of their gross income to the rent, whichever is less. In addition:

(i) The NPA’s income must be verified.

(ii) If the NPA claims to have no income, the person must apply for public assistance before the additional allowance can be authorized.

(iii) Persons reported as not eligible for public assistance due to their immigration status, who are without income will not be expected to contribute toward their rent or be included in the shelter number.

(f) Needs and allowances.

(1) TSS allowance. The amount of the TSS benefit will be established by this office. The maximum benefit an SNA household may receive is equal to the amount which was or would have been previously authorized for that household size by a court ordered supplement under FA. SNA households that were not in receipt of a court ordered supplement prior to their receiving SNA assistance, may receive an allowance equal to the difference between the shelter allowance determined in accordance with section 352.3 of this Title and the actual rental obligation; provided however, that the TSS allowance must not exceed an amount equal to the shelter allowance maximum or an amount, when combined with the allowable shelter allowance, is equal to the following rent table, whichever is greater:

By family size

1 2 3 4 5 6 7 8+
$450 $550 $650 $700 $725 $750 $775 $800

 

(2) TSS benefit increase limitations. Once TSS benefits have been authorized for a household, the TSS benefit amount may increase for that household up to the maximum established in paragraph (1) of this subdivision, provided that the increase is documented in the recipient’s lease or rental agreement.

(3) TSS rental amounts. The temporary assistance household’s rental obligation may exceed the amount authorized under paragraphs (1) and (2) of this subdivision by up to one hundred dollars. The household is responsible for this excess amount and must agree to have this amount restricted from their regular public assistance benefit authorized under section 352.2 of this Title.

(4) Arrears payments. Rent arrears may be authorized as part of the TSS request. Arrears payments for rent cannot exceed the higher of $3,000 or six times the monthly rental obligation. Under extenuating circumstances (e.g. need to keep current housing for medical reasons), and subject to approval by this office, an arrears amount can be authorized for a higher amount not to exceed 10 times the monthly rental obligation. Once arrears payments, including arrears caused by rent increases, are made for the household under this section, no future rental arrears payments will be made for any month in which a TSS benefit was authorized for the household or for any month in which the case was sanctioned.

(g) Budgeting. The following general provisions apply:

(1) A recipient is no longer eligible for a TSS benefit once he or she has lost eligibility for public assistance.

(2) The undue hardship reduction procedures found in section 352.31(d)(2) of this Title do not apply in relationship to TSS benefits.
(3) As a condition for receiving a TSS benefit, recipients must agree to have their entire rent paid directly to the landlord.

(4) TSS is not part of the standard of need for determining eligibility for public assistance. Eligibility shall be determined without regard to TSS.

(h) Notice and procedural rights. To the extent not inconsistent with this section, desk reviews of case discrepancies will forgo the procedures in Part 358 of this Title.

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Part 371 - PUBLIC INSTITUTIONAL CARE - OTDA & CFS

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: www.dos.ny.gov
PART 371

PUBLIC INSTITUTIONAL CARE

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
371.1 Definitions
371.2 Documentation of eligibility
371.3 Determination of initial eligibility
371.4 Determination of continuing eligibility
371.5 Authorization of assistance and care
371.6 Public lodging house or shelter care

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Part 372 - EMERGENCY ASSISTANCE TO NEEDY FAMILIES WITH CHILDREN - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 372

EMERGENCY ASSISTANCE TO NEEDY FAMILIES WITH CHILDREN

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
372.1 EAF--general
372.2 Eligibility
372.4 Scope of assistance
372.5 Application
372.6 Authorization

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Part 373 - REFUGEE CASH ASSISTANCE AND REFUGEE MEDICAL ASSISTANCE

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Statutory Authority: 
Social Services Law, Sections 20, 34, 131, 355, 358

Section 373.1 - General.

Section 373.1 General. (a) Refugee cash assistance (RCA). The RCA program is a Federal program that provides cash assistance to refugees and Cuban/Haitian entrants eligible under this Part in order to assist them to achieve self-sufficiency as soon as possible. The RCA is administered through the social services district in which a refugee or entrant resides.

(b) Relationship to other regulations of the department. To the extent consistent with this Part, regulations of the department governing public assistance will apply to RCA. Such regulations include Part 349

(general provisions), Part 350 (application), Part 351 (investigation and eligibility), Part 352 (standards of assistance), Part 355 (information pamphlets; notification of decisions), Part 356 (inquiries and complaints), Part 357 (confidential nature of records) and Part 358

(fair hearings).

(c) Definitions.

(1) "Employability plan" means an individualized written plan for a refugee or entrant registered for employment services that sets forth a program of services intended to result in the earliest possible employment of the refugee or entrant.

(2) "Employable" means not exempt from registration for employment services set forth in subdivision (b) of section 373.6 of this Part.

(3) "Family self-sufficiency plan" means a plan that addresses the employment-related service needs of the employable members in a family for the purpose of enabling the family to become self-supporting through the employment of one or more family members.

(4) "Filing unit" means the individual or individuals whose needs are considered in determining eligibility for, and the amount of, a payment of RCA for which Federal funding is claimed.

(5) "Household" means the individual or individuals living in a housing unit.

(6) "Refugee medical assistance" (RMA) means medical assistance provided under Article 5 of Title 11 of the Social Services Law to refugees who are otherwise ineligible under Part 360 of this Title for medical assistance and who have resided in the United States for less than an eight month period from initial entry into the United States. RMA provides the same services, in the same manner and to the same extent, as is provided by the medical assistance program.

(7) "Registrant" means an individual who has registered for employment services set forth in subdivision (a) of section 373.6 of this Part.

(8) "Service provider" means a public or private community agency that has entered into a contract with the department to provide employment services to recipients of RCA.

 

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Section 373.2 - Eligibility requirements for RCA and RMA.

373.2 Eligibility requirements for RCA and RMA.

(a) Eligibility for RCA is limited to those applicants who:

(1) meet immigration status and identification requirements set forth in section 373.3 of this Part, or are the dependent children of a parent or parents who meet the immigration status requirements;

(2) are ineligible for cash assistance under the Aid to Dependent Children (ADC) and Supplemental Security Income (SSI) programs, but meet the ADC assistance need standards;

(3) meet the requirements contained in section 373.6 of this Part;

(4) provide the name of the resettlement agency which resettled them; and

(5) are not full-time students in institutions of higher education, except where such enrollment is approved by the department as part of an individual employability plan.

(b) (1) Eligibility for RMA is limited to those applicants who:

(i) meet immigration status and identification requirements set forth in section 373.3 of this Part, or are the dependent children of a parent or parents who meet the immigration status requirements;

(ii) are ineligible for medical assistance, but meet the financial eligibility standards for medical assistance under Subpart 360-4 of this Title;

(iii) have not been denied, or terminated from, RCA under subdivision

(h) of section 373.6 of this Title;

(iv) provide the name of the resettlement agency which resettled them; and

(v) are not full-time students in institutions of higher education, except where such enrollment is approved by the department as part of an individual employability plan.

(2) All recipients of RCA who are not eligible for medical assistance are eligible for RMA. A refugee or entrant may not be required to actually receive or apply for RCA as a condition of eligibility for RMA.

(c) An applicant may be eligible for RCA or RMA under this section only during the eight month period beginning with the first month the refugee or entrant entered the United States. An applicant is not eligible for RCA for any period in which the applicant is receiving a reception and placement grant or matching grant from a refugee resettlement agency. The social services district must determine the amount of financial assistance which a sponsor or resettlement agency has provided to the applicant, and any such assistance, provided in cash or in-kind, will be considered in determining eligibility for and the amount of RCA.

(d) If a recipient of RMA receives increased earnings from employment after eligibility for RMA has been determined, the increased earnings will not affect the recipient's continued RMA eligibility. The RMA recipient will continue to receive RMA until the end of the eight month period beginning with the first month the recipient entered the United States. In cases where the RMA recipient receives private medical coverage, any payment of RMA for that individual must be reduced by the amount of the third party payment.

*(e) A person who is eligible for benefits under the Fish-Wilson program as defined in Part 375 of this Title is not eligible for RCA. * NB Effective until 98/06/27

 

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Section 373.3 - Documentation of immigration status.

Section 373.3 Documentation of immigration status. An applicant for RCA must, as a condition of eligibility, provide proof to the social services district, in the form of documentation issued by the Immigration and Naturalization Service (INS), of one of the following statuses:

(a) for refugee or asylee status:

(1) paroled as a refugee or asylee under Section 212 (d) (5) of the Immigration and Nationality Act (the Act); or

(2) admitted as a conditional entrant under section 203 (a) (7) of the Act; or

(3) admitted as a refugee under section 207 of the Act; or

(4) granted asylum under section 208 of the Act; or

(5) admitted for permanent residence, provided that the individual previously held one of the statuses identified in paragraphs (1) through

(4) of this subdivision; or

(b) for Cuban/Haitian entrant status:

(1) granted parole status as a Cuban/Haitian Entrant (status pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance is provided; or

(2) for any other national of Cuba or Haiti with respect to whom a final, non appealable, and legally enforceable order of deportation or exclusion has not been entered:

(i) paroled into the United States, without acquiring any other status under the Act; or

(ii) the subject of exclusion or deportation proceedings under the Act; or

(iii) an applicant for asylum whose application is pending with the INS.

 

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Section 373.4 - Consideration of income and resources.

Section 373.4 Consideration of income and resources.

(a) In determining the income and resources of applicants for and recipients of RCA, the following may not be considered by a social services district:

(1) any resources remaining in the country of origin of the applicant or recipient; and

(2) a sponsor's income and resources solely because the person is serving as a sponsor.

(b) In determining the eligibility for and receipt of RMA, in-kind services and shelter provided by a sponsor or resettlement agency may not be considered by a social services district.

 

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Section 373.5 - Need standards and payment levels.

Section 373.5 Need standards and payment levels.

(a) In determining need for RCA, a social services district must apply the need standards for ADC established under Part 352 of this Title, except that the earned income disregard of $30 plus one-third of the remainder of the applicant's or recipient's monthly earned income set forth in subdivision (c) of section 352.20 of this Title does not apply.

(b) In determining the amount of the RCA grant to be provided, a social services district must apply the payment level which would be appropriate for an eligible filing unit of the same size under the ADC program.

(c) The payment of RCA must begin on the same date, in relation to the date of application, as assistance under the ADC program would begin as provided by section 351.8 of this Title.

 

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Section 373.6 - Requirements for employment related services and employ

Section 373.6 Requirements for employment related services and employment.

(a) Registration for employment-related services, participation in employment-related services, and acceptance of appropriate offers of employment.

(1) As a condition for receipt of RCA, a recipient who is not exempt from complying with employment requirements set forth in this section must, except for good cause:

(i) register with the service provider for employment-related services;

(ii) within 30 days of receipt of RCA, participate in the assigned employment-related services;

(iii) carry out job search, as provided for in subdivision (f) of this section;

(iv) go to all job interviews arranged by the service provider; and

(v) accept an offer of employment which is determined to be appropriate by the service provider or by the appropriate State or local employment service.

(2) A social services district must permit, but may not require, the voluntary registration for employment services of an applicant or recipient who is exempt under subdivision (b) of this section.

(b) Criteria for exemption from registration for employment related services, participation in job search and interviews, and acceptance of appropriate offers of employment.

(1) An applicant for or recipient of RCA is employable unless the applicant or recipient is:

(i) under age 16;

(ii) under age 18 and a full-time student in secondary school or in the equivalent level of vocational or technical training and reasonably expected to complete the program before reaching age 19;

(iii) ill, when determined by the social services district on the basis of medical evidence or on another sound basis that the illness or injury is serious enough to temporarily prevent entry into employment or training;

(iv) incapacitated, when determined by a physician or licensed or certified psychologist and verified by the social services district, that a physical or mental impairment, by itself or in conjunction with age, prevents the individual from engaging in employment or training;

(v) 65 years of age or older;

(vi) caring for another member of the household who has a physical or mental impairment which requires, as determined by a physician or licensed or certified psychologist and verified by the social services district, care in the home on a substantially continuous basis, and no other appropriate member of the household is available;

(vii) a parent or other caretaker relative of a child under the age of three who personally provides full-time care of the child with only very brief and infrequent absences from the child. Only one parent or other relative may be exempt under this subparagraph;

(viii) working at least 30 hours a week in unsubsidized employment expected to last a minimum of 30 days. This exemption continues to apply if there is a temporary break in full-time employment expected to last no longer than 10 working days; or

(ix) pregnant, if it has been medically verified that the child is expected to be born in the month in which such registration would otherwise be required or within the next six months.

(2) Inability to communicate in English does not exempt an applicant or recipient from registration for employment services, participation in employment-related services, and acceptance of appropriate offers of employment.

(c) Effect of quitting employment or failing or refusing to participate in required services.

(1) As a condition of eligibility for RCA, an employable applicant may not, without good cause, within 30 consecutive calendar days immediately prior to the application for assistance, have voluntarily quit employment or have refused to accept an offer of employment determined to be appropriate by the service provider, using criteria set forth in subdivision (g) of this section.

(2) As a condition of continued receipt of RCA, an employable recipient may not, without good cause, voluntarily quit employment or fail or refuse to meet the requirements of subdivision (a) of this section.

(d) Requirements for employed recipients of RCA to participate in employment-related services.

(1) As a condition of continued receipt of RCA, a recipient who is not exempt under subdivision (b) of this section and who is employed less than 30 hours a week must accept part-time employment services, as available and as determined to be appropriate, using criteria set forth in subdivision (g) of this section, provided that such services must not interfere with the recipient's current employment.

(2) The social services district may, but is not required to, require part-time employment services if a recipient of RCA is employed at least 30 hours a week, provided that such services must not interfere with the recipient's current employment.

(e) Development of an employability plan.

(1) An individual employability plan must be developed, as part of a family self-sufficiency plan where applicable, by the social services district or a services provider for each recipient of RCA in a filing unit who is not exempt under subdivision (b) of this section.

(2) The employability plan must:

(i) be designed to lead to the earliest possible employment and not be structured in such a way as to discourage or delay employment or jobseeking; and

(ii) contain a definite employment goal, attainable in the shortest time period consistent with the employability of the refugee in relation to job openings in the area.

(f) Job search requirements. An employable recipient of RCA must carry out a job search program if job search is a required service in the recipient's employability plan.

(g) Criteria for appropriate employment services and employment.

(1) Employment services or employment must meet the following criteria:

(i) all assignments to services must be within the scope of the recipient's employability plan. The plan may be modified to reflect changed services or employment conditions;

(ii) the services or employment must be related to the capability of the recipient to perform the task on a regular basis. Any claim of adverse effect on physical or mental health must be based on adequate testimony from a physician or licensed or certified psychologist indicating that participation would impair the recipient's physical or mental health;

(iii) the total daily commuting time to and from home to the service or employment site must not normally exceed two hours, not including the transporting of a child to and from a child care facility, unless a longer commuting distance or time is generally accepted in the community, in which case the round trip commuting time must not exceed the generally accepted community standards;

(iv) when child care is required, the care must meet the standards in Part 415 of this Title for work and training programs for ADC recipients;

(v) the service or work site to which the recipient is assigned must not be in violation of applicable Federal, State or local health and safety standards;

(vi) assignments must not be made which are discriminatory in terms of age, sex, race, creed, color, or national origin;

(vii) appropriate work may be temporary, permanent, full-time, parttime, or seasonal if such work meets the other standards of this section;

(viii) the wage must meet or exceed the Federal or State minimum wage law, whichever is applicable, or if such laws are not applicable, the wage must not be substantially less favorable than the wage normally paid for similar work in that labor market;

(ix) the daily hours of work and the weekly hours of work must not exceed those customary to the occupation;

(x) no individual may be required to accept employment if:

(a) the position offered is vacant due to a strike, lockout, or other bona fide labor dispute; or

(b) the recipient would be required to work for an employer contrary to the conditions of his or her existing membership in the union governing that occupation. However, employment not governed by the rules of a union in which he or she has membership may be deemed appropriate; and

(xi) the quality of training if offered must meet local employers' requirements so that the recipient will be in a competitive position within the local labor market. The training also must be likely to lead to employment which will meet the appropriate work criteria.

(2) If a recipient is a professional in need of professional refresher training and other recertification services in order to qualify to practice his or her profession in the United States, the training may consist of full-time attendance in a college or professional training program, provided that such training:

(i) is approved as part of the recipient's employability plan by the services provider or its designee;

(ii) does not exceed one year's duration, including any time enrolled in such program in the United States prior to the refugee's application for assistance;

(iii) is specifically intended to assist the professional in becoming relicensed in his or her profession; and

(iv) if completed, can realistically be expected to result in such relicensing.

(3) A job offered, if determined appropriate under the requirements of this subdivision, is required to be accepted by the recipient without regard to whether such job would interrupt a program of services planned or in progress unless:

(i) the recipient is currently participating in a program in progress of on-the-job training or vocational training which meets the requirements of this section and which is being carried out as part of an approved employability plan; or

(ii) the recipient is enrolled full-time in a professional recertification program which meets the requirements of paragraph (2) of this subdivision.

(h) Failure or refusal to accept employment services or employment.

(1) Voluntary registrant. When an employable recipient of RCA, who is exempt from registration under subdivision (b) of this section, has failed or refused to participate in appropriate employment services or to accept an appropriate offer of employment, the social services district may deregister the recipient for up to 90 days from the date of determination that such failure or refusal has occurred, but the individual's cash assistance may not be affected.

(2) Mandated registrant.

(i) Termination or reduction of assistance. When, without good cause, an employable recipient of RCA who is not exempt from registration under subdivision (b) of this section has failed or refused to meet the requirements of subdivision (a) of this section or has voluntarily quit a job, the services provider must notify the appropriate social services district so that the district can take the action described in subparagraphs (ii) and (iii) of this paragraph.

(ii) Notice of intended termination.

(a) In case of proposed action to terminate, discontinue, suspend, or reduce assistance, the social services district must give timely and adequate notice as defined in Subpart 358-2 of this Title.

(b) The written notice must include:

(1) an explanation of the reason for the action and the consequences of such failure or refusal; and

(2) notice of the recipient's right to a fair hearing under Part 358 of this Title.

(iii) Sanctions.

(a) If the sanctioned recipient is the only member of the filing unit, the assistance must be terminated by the social services district. If the filing unit includes other members, the social services district must not take into account the sanctioned recipient's needs in determining the filing unit's need for assistance.

(b) The sanction will remain in effect for 90 days for the first such failure or refusal and 180 days for any subsequent such failure or refusal.

 

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Section 373.7 - Conciliation.

373.7 Conciliation.

(a) (1) Each social services district must establish a conciliation procedure through which recipients of RCA must be afforded an opportunity for conciliation to dispute a determination that the recipient has failed or refused to participate in appropriate employment services, to carry out a job search, to accept an appropriate offer of employment or any action taken by a social services district in accordance with the provisions of this Part.

* (2) The conciliation procedure must provide for at least one contact between the recipient, appropriate social services staff and the mediator. The process may last no longer than 30 days. Either the social services district or the recipient may terminate this period sooner when either believes that the dispute cannot be resolved by conciliation. * NB Effective until 98/06/27

* (2) The conciliation procedure must provide for at least one contact between the recipient, appropriate social services district staff and the mediator. The process may last no longer than 30 days unless mutually agreed to by the social services district and the recipient. * NB Effective 98/06/27

(3) The social services district must enter into an agreement with an independent entity or must employ trained social services district staff who have no direct responsibility for a participant's case to act as mediators for such disputes.

(4) Notwithstanding the provisions of paragraph (3) of this subdivision, the social services district may designate other staff who are not specifically trained to mediate disputes if no independent entity or trained staff are available. Such staff must have no direct responsibility for the recipient's case and such designation must be submitted to the local commissioner in writing.

(b) Conciliation procedure. (1) A social services district must issue a notice to each recipient of RCA who refuses or fails to comply with the requirements of this Part. Such notice must be issued as soon as possible, but no later than 10 days following the date of failure or refusal to participate. The notice must advise the recipient of his or her refusal or failure to comply and that he or she has seven days to request conciliation with the social services district regarding any dispute related to such refusal or failure to comply.

(2) If the recipient requests conciliation, it will be the recipient's responsibility to provide reasons for such refusal or failure to comply.

(3) (i) If the district and the recipient cannot, with the assistance of the mediator, resolve the issues related to the recipient's refusal or failure to comply, a written document summarizing the conciliation and notifying the recipient that he or she has the right to a fair hearing pursuant to Part 358 of this Title must be given or sent to the recipient by the district within 10 days of the termination of conciliation. The social services district must incorporate such document into the recipient's case record and, in the event of a fair hearing, present it as required in accordance with section 358-4.3 of this Title. If the district determined that the refusal or failure to comply was willful and without good cause, then the social services official must sanction the recipient pursuant to subdivision (h) of section 373.6 of this Part.

(ii) If the dispute is resolved to the satisfaction of the recipient and the district through the conciliation process, a written document memorializing such resolution must be sent to the social services district and the recipient within 10 days of such resolution. Such resolution is binding on the social services district and the recipient.

(4) If the recipient does not respond to the seven day conciliation letter issued by the social services district pursuant to paragraph (1) of this section, or if the social services district determines that the recipient's refusal or failure to comply was willful and without good cause, then the social services district must issue an adequate notice to deny RCA or a timely and adequate notice of intent to discontinue or reduce RCA pursuant to subdivision (h) of section 373.6 of this Part.

(5) No sanction related to the recipient's failure to comply may be imposed during the conciliation period.

 

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Section 373.8 - Fair hearings.

Section 373.8. Fair hearings. To the extent not inconsistent with this Part, all of the requirements in Part 358 of this Title concerning notice requirements and fair hearings will apply to the RCA and RMA programs. For the purposes of Part 358, RCA will be considered public assistance.

 

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Part 374 - TAX REFUND OFFSET FOR OVERPAYMENTS OF PUBLIC ASSISTANCE - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 374

TAX REFUND OFFSET FOR OVERPAYMENTS

OF PUBLIC ASSISTANCE

(Statutory authority: Social Services Law Sections 20, 34,
106-c, 355 and ch. 81, L. 1995)
Sec.
374.0 Scope.
374.1 Withholding of state tax overpayments.
374.2 Notice.
374.3 Defenses.
374.4 Review and determination by the department.

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Article 3 - Authorization and Payment

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Effective Date: 
Monday, June 15, 1998

Part 381 - METHOD OF PAYMENT - OTDA & CFS

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: www.dos.ny.gov
PART 381

METHOD OF PAYMENT

(Statutory authority: Social Services Law, Sections 20, 34, 133-a, 355)
Sec.
381.1 Definitions
381.2 General policy
381.3 Restrictions on money payments
381.4 Restricted payments in ADC
381.5 Review and termination of restriction--ADC
381.7 Requirements governing designation of protective payees
381.8 Fair hearings on method of payment
381.9 Limitations on reimbursement

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Part 382 - PREDETERMINATION GRANTS - OTDA & CFS

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: www.dos.ny.gov
PART 382

PREDETERMINATION GRANTS

(Statutory authority: Social Services Law, Sections 20, 34, 131, 302, 355)
Sec.
382.1 Definitions
382.2 Requirement to make a predetermination grant
382.3 Decision on eligibility
382.4 Continuation of a predetermination grant
382.5 Claims for reimbursement

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Part 383 - IDENTIFICATION CARDS

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Effective Date: 
Monday, December 27, 1971
Statutory Authority: 
Social Services Law, Sections 20, 34, 131, 363-a

Section 383.1 - General issuance.

Section 383.1 General issuance. Each social services official must issue a photographic ID card, in accordance with the specifications of the office, to any person who is eligible for public assistance and to whom payment is to be made, except to a recipient who is unable to cash his or her own check personally or to access benefits personally through electronic issuance systems, or is a resident in a medical or health-related facility.

 

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Section 383.2 - Contracts.

383.2 Contracts. The office must contract with a photo ID supplier for the necessary equipment, services and supplies to implement this requirement. When a recipient claims that his or her ID card, which is required to access benefits through electronic issuance systems, has been lost, stolen or destroyed, or that the security features of the card have been comprised, the social services district must provide the recipient with a replacement access card within 48 hours, exclusive of holidays and weekends, once the recipient has complied with the local district's identification verification requirements.

 

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Section 383.3 - Grantee responsibility.

383.3 Grantee responsibility. (a) Each appropriate grantee is required to pose for and except an identification card; and, upon request, to present the card as identification for the delivery or cashing of a public assistance check or for accessing benefits through electronic issuance systems. Failure of a grantee to fulfill these requirements makes him or her ineligible for assistance; and if he or she is the only eligible grantee in the family, the needs of the other eligible family members must be met as a protective payment.

(b) Each appropriate grantee must receive an initial ID card at no charge to the grantee. When a recipient claims that his or her ID card, which is required to access benefits through electronic issuance systems, has been lost, stolen or destroyed, or that the security features of the card have been compromised, the social services district must provide the recipient with a replacement access card within 48 hours, exclusive of holidays and weekends, once the grantee has complied with the local district's identification verification requirements.

 

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Section 383.4 - Medical assistance.

383.4 Medical assistance. (a) Each local social services department shall issue medical assistance identification cards for its entire public assistance and medical assistance only caseload (including chronic and foster-care cases) in the manner and at the times required in Part 360 of this Title.

(b) The identification card issued to a person eligible for medical assistance shall constitute full authorization for providing any medical services and supplies for which the person is eligible.

 

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Section 383.5 - Improper utilization of medical assistance identification card.

383.5 Improper utilization of medical assistance identification card. If the local social services district is advised by the department that a recipient of medical assistance has utilized his medical assistance identification card improperly to obtain care or services, the local social services district shall:

(a) restrict, in accordance with procedures described in section 360.32 of this Title, the use of such card to a single provider in the restriction category; or

(b) require prior approval of the local social services district for any or all ambulatory care and services requested by the recipient except emergency care and services.

 

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Part 384 - AUTOMATED FINGER IMAGING SYSTEM

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Statutory Authority: 
Social Services Law Sections 17, 20, 34, 131, 134-a, 153, 158, 355

Section 384.0 - Scope.

Section 384.0 Scope. This Part sets forth the provisions and requirements governing the authorization, implementation and use of an automated finger imaging system by social services districts.

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Wednesday, March 20, 1996

Section 384.1 - Definitions.

384.1 Definitions. As used in this Part: (a) Automated finger imaging system means a computer managed system, operated by a contractor designated by the department, which captures the image of the two index fingers and the facial photograph of the subject and provides a means of storing a record of those finger images in a manner so that other records of finger images can be compared to those finger images.

(b) Contractor means a firm which has entered into a contract with the department to design and implement an automated finger imaging system.

(c) Evaluating contractor means an independent academic or research organization experienced in evaluating public assistance programs for a comprehensive evaluation of the automated finger imaging system with whom the department has contracted for the purpose of making such an evaluation.

 

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Section 384.2 - Participation of social services districts.

384.2 Participation of social services districts. All social services districts must participate in the automated finger imaging system described in this Part and must submit operational plans describing how their procedures to participate in the automated finger imaging system will fulfill the requirements for the automated finger imaging system described in this Part. Such plans will be reviewed by the department and will be approved only if such plans satisfactorily fulfill the requirements prescribed by the department in accordance with the provisions of this Part. All social services districts must participate in the automated finger imaging program operated by the contractor described in subdivision (c) of section 384.1 of this part.

 

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Section 384.3 - Department supervision of development and implementation.

384.3 Department supervision of development and implementation. (a) The department will oversee the process by which social services districts coordinate with the contractor in the implementation of the automated finger imaging system described in this Part.

(1) Each social services district must request the necessary local approvals for such social services district to authorize the department to act on behalf of the social services district and authorize payment to be made for equipment and services rendered to such social services district in the same manner as other payments are made for such district.

(2) All social services districts must cooperate with and assist the department in monitoring and evaluating the operation of the automated finger imaging system. Districts also must cooperate with and assist, as directed by the department, the evaluating contractor designated by the department. Districts also must assist the department in the preparation of any reports that are required by the department.

(3) All social services districts must establish procedures to:

(i) provide notice of the provisions of section 351.2(a) and section 360-3.2(i) of this Title and the provisions of this subdivision to applicants for or recipients of safety net assistance, emergency safety net assistance, public institutional care for adults, family assistance, emergency assistance to needy families with children, benefits under the food stamp program, benefits under the food assistance program, and medical assistance;

(ii) ensure that information and data collected and maintained through the use of the automated finger imaging system is kept confidential in accordance with state and federal laws and regulations, as appropriate; and

(iii) ensure that applicants and recipients whose benefits are denied or terminated receive notices which meet the requirements of Part 358 of this title.

(4) Each social services district must permit, cooperate with and assist the department in the conduct of periodic audits to monitor compliance with all laws, regulations and directives regarding such system to ensure that any records maintained as part of such system are accurate and complete; that no illegal or unauthorized disclosures have taken place; that effective software and hardware designs have been instituted with security features to prevent unauthorized access to such records; that access to such record information system facilities, systems operating environments, data file contents, whether while in use or when stored in a media library, is restricted to authorized personnel only; that operational programs are used that will prohibit inquiry, record updates, or destruction of records from other than designated terminals; and that operational programs are used to detect and store for the output of designated department employees all unauthorized attempts to penetrate any automated finger imaging system program or file. Each social services district also must develop and implement, and permit the department to monitor and review, measures to ensure that adequate and timely procedures exist to protect the applicant's or recipient's right to have access to and review the records maintained as part of the automated finger imaging system for the purpose of accuracy and completeness. Such procedures must include procedures for review of information maintained about such individuals, procedures for administrative review (including procedures for administrative appeal) and procedures for necessary correction of any records found to be inaccurate or incomplete after an investigation and review of any claim by the individual to whom the information relates.

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Section 384.4 - Reimbursement of social services districts.

384.4 Reimbursement of social services districts.

(a) All expenditures made by social services districts and approved by the department for the automated finger imaging system or otherwise authorized by this Part or by other law or regulations will be reimbursed as provided by section 153 of the Social Services Law or as provided by any other applicable provision of law or regulation. Automated finger imaging system activities conducted in accordance with a plan submitted to and approved by the department as described in section 384.2 of this Part or pursuant to the terms of the contract between the department and the contractor will be considered exempt activities, as described in section 609.5(j) (l) (iii) of this Title, for purposes of obtaining an exemption from the administrative cost reimbursement limitations.

(b) Any expenditures made by social services districts which are not made in accordance with the requirements of this Part will not be reimbursed.

 

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Article 4 - Services to Individuals

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Part 385 - EMPLOYMENT RELATED REQUIREMENTS, PROGRAMS AND SERVICES - OTDA & DOL

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090 OR NYS Department of Labor Counsel’s Office State Campus, Building 12 Albany, NY 12240 (518) 457-7069
*PART 385

EMPLOYMENT RELATED REQUIREMENTS, PROGRAMS AND SERVICES

(Statutory authority: Social Services Law, Sections 20[3][d], 34[3][f],
131-a(5), 158-b, 332(2)(a); L. 1992 ch. 41, Section 165[p])
Sec.
385.0 Scope
385.1 Definitions
385.2 Participation and exemptions
385.3 Supportive services
385.4 Responsibilities
385.5 Education
385.6 Job skills training
385.7 Job search program for applicants for and recipients of aid to dependent children
385.8 Job search program for applicants for and recipients of home relief
385.9 Job readiness training
385.10 Work supplementation program for recipients of aid to dependent children
385.11 On-the-job training for recipients of home relief
385.12 Work experience programs for recipients of aid to dependent children
385.13 Work experience programs for recipients of home relief
385.14 On-the-job training program for recipients of aid to dependent children
385.15 Job opportunity program
385.16 Approval of training
385.17 Local employment plan requirements
385.18 Conciliation
385.19 Failure to comply with requirements of this Part
385.20 Voluntary termination of employment or voluntary reduction in earning capacity
385.21 Employment alternatives partnership program
385.22 Applicability of this Part * REPEALED 97/11/25 Pending final adoption
.SO PDT 06/23/93 amd PT385
.SO PDT 12/10/97 90 days rpl PT385
.SO PDT 03/11/98 90 days rpl PT385
.SO PDT 06/10/98 90 days rpl PT385

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Part 386 - STAFF DEVELOPMENT

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Effective Date: 
Friday, January 30, 1976
Statutory Authority: 
Social Services Law, Sections 20, 34

Section 386.1 - Staff.

Section 386.1 Staff. Each agency shall:

(a) provide a staff development program for all levels of social services staff or make arrangements with other agencies, with this department, or with educational facilities for the provision of such training. Such training activity should be initiated simultaneously with the classification of cases to assist staff with the proper identification of problems and to prepare case workers to provide the necessary services;

(b) provide for the selection of workers, case supervisors and consultants best qualified by education and experience for work in relation to the defined problems of families and adults and shall secure, as available, professionally qualified supervisors, consultants and workers to provide preventive and rehabilitative services in relation to serious problems of families and adults.

 

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Section 386.2 - Staff development positions.

386.2 Staff development positions. Each social services district employing 250 or more persons should employ a staff development director and such additional qualified staff development persons as shall be necessary to implement the district's staff development program.

(b) Each social services district employing 90 or more but less than 250 persons should employ a staff development supervisor and such additional qualified staff development persons as shall be necessary to implement the district's staff development program.

(c) Each social services district employing fewer than 90 persons should employ a staff development coordinator.

 

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Section 386.3 - Training plan requirement.

386.3 Training plan requirement. Each social services district shall be required annually to submit a staff development plan to the department for approval. This plan shall be in accordance with the guidelines established by the Federal and State governments.

 

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Section 386.4 - State reimbursement.

386.4 State reimbursement. Each social services district shall be entitled to 100-percent State reimbursement for salaries paid to a fully qualified staff development director, supervisor or coordinator who directs the training program of the agency on a full-time basis.

 

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Section 386.5 - Training expenditures in excess of $5,000.

386.5 Training expenditures in excess of $5,000. Before a social services district may enter into a contract for training or incur a noncontractual training expenditure in excess of $5,000, the social services district shall submit the proposed contract, or in the absence of a contract, a written request to the department for review and approval. The department shall approve or disapprove the proposed training expenditure within 30 days of receipt of such contract or request, and shall notify the district in writing of the department's decision. If the training expenditure is disapproved, the written notice shall inform the district of the reasons for disapproval. The written approval of the department shall be a condition precedent to receiving State reimbursement for the training expenditures.

 

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Part 387 - FOOD STAMPS PROGRAM - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 387

FOOD STAMPS PROGRAM

(Statutory authority: Social Services Law,
Sections 20(3)(d), 34(3)(f), 95)
Sec.
387.0 Applicability; responsibilities of the department and local
social services department
387.1 Definitions
387.2 Responsibilities of local department
387.3 Indemnification
387.4 Security control, processing of food stamp identification cards
(DSS-104 or State-approved local equivalent) and the State-ap
proved social services district notice of change form
387.5 General application process
387.6 Application form
387.7 Interviews
387.8 Application process
387.9 Investigation and eligibility
387.10 ncome standards
387.11 ncome exclusions
387.12 ncome deductions
387.13 Work registration requirements, responsibilities of registrants,
noncompliance actions and voluntary termination of employment
387.14 Determination of food stamp eligibility
387.15 Determining food stamp benefit levels
387.16 Special provisions for household circumstances
387.17 Certification/authorization
387.18 Restoration of lost benefits
387.19 Claims against households
387.20 Notification of local department decisions
387.21 Implementation of fair hearing decisions
387.22 Referenced material
387.23 Food Stamp Employment and training program plans
.SO PDT 02/17/93 amd PT387

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Part 388 - FOOD ASSISTANCE PROGRAM - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 388

FOOD ASSISTANCE PROGRAM

(Statutory authority: Social Services Law, Sections 20(3)(d),
34(3)(f) and 95(10)(i))
Sec.
388.0 Applicability, responsibilities of the office
388.1 Scope
388.2 Social services district participation
388.3 Eligibility
388.4 Financial responsibility
388.5 Determining food assistance benefit levels
388.6 Benefits not income or resources
388.7 Sanction or penalty
388.8 Automated finger imaging system
388.9 Severability
388.10 Effective Date

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Part 390 - DONATED GRANTS OF MONEY, PROPERTY OR SERVICES

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Effective Date: 
Monday, January 29, 1973
Statutory Authority: 
Social Services Law, Sections 20, 34

Section 390.1 - General.

Section 390.1 General. A social services district may accept, receive and expend public and private donated grants of money, property or services. Expenditures for such gifts for social services shall, if approved by the department, be subject to reimbursement by the State, not pursuant to section 153 or any other provision of the Social Services Law, but in accordance with department regulations to the extent of any, and only in the amount of, Federal funds, if any, properly received or to be received on account of such expenditures.

 

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Section 390.2 - Reimbursement.

390.2 Reimbursement. Expenditures of such donations for social services, whether provided directly by a social services district or by purchase, may be eligible for reimbursement, subject to the approval of the department, under the following circumstances and conditions:

(a) There shall be a written agreement between the social services district and the donor, which agreement shall meet all State and Federal requirements pertaining thereto, and a copy of such agreement shall be submitted to the department prior to the proposed effective date thereof.

(b) The donations shall be transferred to the local social services district and be under its administrative control.

(c) The donations shall be on an unrestricted basis (except that funds donated to support a particular kind of activity, or to support a particular kind of activity in a named community, shall be acceptable provided the donating organization is not the sponsor or operator of the activity being funded).

(d) The donation shall not be earmarked for a particular individual or for members of a particular organization.

(e) The donations shall not revert to the donor's facility or use.

(f) The donations shall comprise the full non-Federal (State and local) share of the cost of the service being purchased.

(g) Federal funds are available for the service activity being funded.

 

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Part 393 - HOME ENERGY ASSISTANCE PROGRAM - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 393

HOME ENERGY ASSISTANCE PROGRAM

(Statutory authority: Social Services Law, Sections 20[3][d], 34[3][f], 97, 355[3])
Sec.
393.1 General
393.2 Administration
393.3 Application
393.4 Eligibility
393.5 Decision, appeal and fair hearing

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Part 394 - UTILITY DISCONNECTION AND FUEL NONDELIVERY PROCEDURES - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 394

UTILITY DISCONNECTION AND FUEL NONDELIVERY PROCEDURES
(Statutory authority: Social Services Law, Sections 20, 473, 473-a, 473-b) Sec.
394.1 Utility disconnection response procedures
394.2 (Reserved)
394.3 Residential utility service termination--special protection for
aged, blind or disabled

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Article 5 - Resources

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Part 395 - MILITARY SERVICE BENEFITS - DVA & OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090 OR NYS Division of Veteran’s Affairs Counsel’s Office Corning Tower, Suite 2836 Empire State Plaza Albany, NY 12223 (518) 474-6114
PART 395

MILITARY SERVICE BENEFITS

(Statutory authority: Social Services Law, Sections 20, 34)
Sec.
395.1 Responsibilities relating to military service benefits
395.2 Effect of veterans' benefits on eligibility for public assistance
and care
395.3 Persons in military service--eligibility of dependents

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Part 396 - Lottery Prize Intercept for Repayment of Public Assistance - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact:

Office of Temporary & Disability Assistance

40 North Pearl Street

Albany, New York 12243

(518) 473-1090

Part 396

Lottery Prize Intercept for Repayment of Public Assistance
(Statutory Authority: Social Services Law, Sections 20(3)(d), 34(3)(f), 131-r)

Sec.

396.1 Intercept of lottery winnings
396.2 Notice
396.3 Defenses
396.4 Review and determination by the office
396.5 Definitions

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Effective Date: 
Wednesday, July 14, 1999

Part 397 - EMERGENCY ASSISTANCE FOR ADULTS - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 397

EMERGENCY ASSISTANCE FOR ADULTS

(Statutory authority: Social Services Law, Sections 20, 34, 300-309; L. 1988, ch. 53)
Sec.
397.1 Definitions
397.2 Application
397.3 Determination of eligibility
397.4 Factors of eligibility
397.5 Granting of EAA
397.6 Reimbursement
397.7 Records and reports
397.8 Appeal and fair hearing
397.9 Authorization
397.10 Grants of assistance for guide dogs
397.11 Emergency shelter allowances for persons with acquired immune
deficiency syndrome (AIDS) faced with homelessness.

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Part 398 - STATE SUPPLEMENTAL PERSONAL NEEDS ALLOWANCE

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Statutory Authority: 
Social Services Law, Sections 20(3), 34(3), 209(2-a)

Section 398.1 - Definition.

Section 398.1 Definition. State Supplemental Personal Needs Allowance

(SS/ PNA) means a grant of assistance to meet the additional personal needs of individuals who are receiving or are eligible to receive Federal supplemental security income (SSI) payments and/or additional State payments and who are residing in a residential health care facility regulated pursuant to the provisions of article 28 of the Public Health Law.

 

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Section 398.2 - Factors of eligibility.

398.2 Factors of eligibility. In order to be eligible for SS/PNA, an individual shall:

(a) be a resident of the State of New York;

(b) be eligible for or in receipt of SSI benefits and/or additional State payments;

(c) reside in a residential health care facility regulated under article 28 of the Public Health Law; and

(d) have no countable income, earned or unearned, other than the Federal SSI grant provided to residents of medical facilities for whom the Medical Assistance Program pays at least 50 percent of the cost of care.

 

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Section 398.3 - Determination of eligibility.

398.3 Determination of eligibility. The department shall determine and redetermine each individual's eligibility for SS/PNA on the basis of the data supplied by the Federal Social Security Administration through the State Data Exchange (SDX).

 

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Section 398.4 - Granting of SS/PNA.

398.4 Granting of SS/PNA. Effective January 1, 1988, eligible persons are entitled to a cash benefit of $25 each month to be paid each month either directly by the department or in whole or in part by the Federal Social Security Administration under an agreement with the department. That part of the benefits authorized by this section which are not paid by the Federal Social Security Administration will be paid by the department.

 

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Part 399 - FOOD STAMP FRAUD AND FOOD STAMP INTENTIONAL PROGRAM VIOLATIONS--DISQUALIFICATION - OTDA

This part is NOT maintained by the Department of Health. The following table of contents may not be current. For information and/or copies please contact: Office of Temporary & Disability Assistance 40 North Pearl Street Albany, New York 12243 (518) 473-1090
PART 399

FOOD STAMP FRAUD AND FOOD STAMP INTENTIONAL
PROGRAM VIOLATIONS--DISQUALIFICATION

(Statutory authority: Social Services Law, Sections 20[3][d], 34[3][f], 95)
Sec.
399.1 Definitions
399.2 Application
399.3 Administrative food stamp fraud, pre-August 1, 1983
399.4 Referral to district attorney
399.5 Intentional program violation (acts occurring on or after August 1, 1983)
399.6 Administrative food stamp fraud hearings (pre-August 1, 1983, acts)
399.7 Administrative disqualification hearings (acts occurring on or after August 1, 1983)
399.8 Waiver of administrative disqualification hearing
399.9 Penalties
399.10 Limitations
399.11 Effectiveness of this Part

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