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18 CRR-NY 360-3.2NY-CRR

STATE COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW YORK

TITLE 18. DEPARTMENT OF SOCIAL SERVICES

CHAPTER II. REGULATIONS OF THE DEPARTMENT OF SOCIAL SERVICES

SUBCHAPTER B. PUBLIC ASSISTANCE

ARTICLE 2. DETERMINATION OF ELIGIBILITY—CATEGORICAL

PART 360. MEDICAL ASSISTANCE

SUBPART 360-3. ELIGIBILITY REQUIREMENTS

18 CRR-NY 360-3.2

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 subdivision (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 paternity 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 following:

(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;

(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 necessary, 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 recipient 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 (f)(1) 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 (f)(3) 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 cooperate 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 (vii)(g) of this paragraph. If the applicant or recipient does not meet the above requirements, 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 interests of the child. Cooperation in establishing paternity or seeking support shall be deemed to be against the best interests of the child only if:

(a) the applicant's or recipient's cooperation in establishing paternity 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; or

(b) the child for whom support is sought was conceived as a result of incest or forcible rape; 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 a 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 appropriate 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 establishment 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 determines that the applicant or recipient requires additional time because of the difficulty of obtaining the corroborative evidence, upon supervisory approval, the worker or designee shall allow a reasonable additional period of time.

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

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

(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 present 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 agency 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 appropriate 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 corroborative evidence is needed; and

(2) specify the type of document needed.

(e) Upon request, the social services district worker or an appropriate 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 anticipation 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 establish 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 determination; and

(b) consider any recommendation from 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 redetermination 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 subparagraphs (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 activities 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 designee excuses cooperation but determines that the child support enforcement 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 unit 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

(ii) The determination shall be made within 30 days from 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 additional 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 maybe 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;

(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;

(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 Nationally 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

(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 2780 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 60-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 60-day postpartum 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 subdivision. 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 receiving 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 agreement is in effect under title IV-E of the Social Security Act is a resident 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 institution 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

(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 indefinitely.

(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 permanently 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 emancipated is a State resident if:

(a) the parent applying for MA on the person's behalf is a State resident 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 placement; 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.

(i) 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 determined 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 agreements, 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.

18 CRR-NY 360-3.2

Current through July 31, 2021

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