HLT-01-07-00008-P Conditions of Citizenship and Immigration Eligibility

1/3/07 N.Y. St. Reg. HLT-01-07-00008-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 1

January 03, 2007

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. HLT-01-07-00008-P

Conditions of Citizenship and Immigration Eligibility

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed action:

Amendment of section 360-3.2(j) of Title 18 NYCRR.

Statutory authority:

Social Services Law, section 363-a(2)

Subject:

Citizenship and immigration status: conditions of eligibility.

Purpose:

To update and bring them into compliance with the Alliessa v. Novello decision.

Text of proposed rule:

Subdivision (j) of section 360-3.2 of Title 18 NYCRR is repealed and a new subdivision (j) is added to read as follows:

(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.

Text of proposed rule and any required statements and analyses may be obtained from:

William Johnson, Department of Health, Division of Legal Affairs, Office of Regulatory Reform, Corning Tower, Rm. 2415, Empire State Plaza, Albany, NY 12237, [phone], fax: [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

Statutory Authority:

Social Services Law (“SSL”) Section 363-a(1) provides that the Department is the “single state agency” responsible for supervising the administration of the State's medical assistance (“Medicaid”) plan. As such, the Department is responsible for adopting such regulations, not inconsistent with law, as may be necessary to implement SSL Title 11, Article 5, entitled “Medical Assistance for Needy Persons” (SSL Section 363-a(2)). Section 201(1)(v) of the Public Health Law (“PHL”) is in accord, providing that the Department, as the Medicaid “single state agency,” shall adopt such regulations as may be necessary to implement the State's Medicaid plan.

SSL Section 122(1)(c) provides that the following persons shall, if otherwise eligible, be eligible for Medicaid: any person who, on August 4, 1997, was residing 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 Medicaid authorization based on a finding that he or she was a person “permanently residing in the United States under color of law” (“PRUCOL”); and, any person who, on August 4, 1997, was diagnosed as having acquired immune deficiency syndrome, as defined in PHL Section 2780(1), and was in receipt of a Medicaid authorization based on a finding that he or she was PRUCOL.

SSL Section 122(1)(e) provides that nothing in such section shall preclude the receipt by any alien of Medicaid for care and services (not including care and services related to an organ transplant procedure) necessary to treat an emergency medical condition as that term is defined in section 1903 of the federal Social Security Act (42 U.S.C. Section 1396b(v) (3)).

SSL Section 122(6) provides that nothing in such section shall be interpreted as affecting the eligibility for pre-natal care benefits for persons otherwise eligible for such benefits.

Social Security Act Section 1137(f) (42 U.S.C. Section 1320b-7(f)) exempts aliens seeking Medicaid coverage only for care and services necessary to treat an emergency medical condition from the requirement that applicants for, or recipients of, Medicaid must furnish a social security number.

The proposed regulations set forth eligibility standards for social services districts, which administer the Medicaid program, to apply when determining whether citizens, lawful aliens and other aliens are eligible for Medicaid and, if so, the scope of the Medicaid benefits that they may receive. The Department's statutory rulemaking authority as the “single state agency” responsible for supervising districts' administration of the Medicaid program thus authorizes the proposed regulations.

Legislative Objectives:

The proposed regulations would revise the Department's regulations governing aliens' Medicaid eligibility to be consistent with the June 5, 2001, decision of the New York Court of Appeals in Aliessa v. Novello, 96 N.Y. 2d 418 (2001) and the Department's implementation of such decision. The proposed regulations thus further the Legislature's objective that the Department's regulations governing the administration of the Medicaid program be consistent with law, including final decisions of the State's highest appellate court, the Court of Appeals.

The Aliessa decision resolved several years of State court litigation regarding the constitutionality of the restrictions on lawful aliens' Medicaid eligibility set forth in SSL Section 122. The Legislature enacted this statute in 1997 to implement the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), which dramatically changed lawful aliens' eligibility for Medicaid and other public benefit programs. (P. L. 104-193)

Prior to PRWORA, aliens' eligibility for Medicaid was governed, in general, by the federal Omnibus Budget Reconciliation Act of 1986 (“OBRA ‘86,” P. L. 99-509) and the Immigration Reform and Control Act of 1986 (“IRCA,” P. L. 99-603). Under OBRA ‘86 and its implementing regulations, state Medicaid programs were required to provide Medicaid to otherwise eligible aliens who were either lawfully admitted for permanent residence (“green card” holders) or who were “permanently residing in the United States under color of law” (“PRUCOL”). (42 U.S.C. Section 1396b(v), 42 C.F.R. Sections 435.406(a)(2), 435.408) Under IRCA and its implementing regulations, full Medicaid eligibility was extended to certain categories of aliens, including the aged, blind and disabled, who were granted temporary resident status under Sections 245A, 210A or 210 of the Immigration and Nationality Act. (8 U.S.C. Section 1255(a)(h), 42 C.F.R. Sections 435.406(a)(3), (4)) Other temporary lawful aliens were ineligible under IRCA for full Medicaid benefits for five years. (42 C.F.R. Section 435.406(b)) During this five year period, these lawful aliens were eligible only for Medicaid coverage for care and services related to the treatment of an emergency medical condition and for services for pregnant women. (42 C.F.R. Sections 435.406(b), 440.255) Undocumented and otherwise illegal aliens were eligible only for Medicaid coverage of services necessary to treat an emergency medical condition. (42 U.S.C. Section 1396b(v))

State law and regulations mirrored the federal requirements governing aliens' Medicaid eligibility that were prescribed by OBRA ‘86 and IRCA. (SSL Section 131-k(1), repealed by L. 1997, c. 436, pt. B, Section 15, effective August 20, 1997; 18 NYCRR Section 360-3.2(j))

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 curtailed lawful aliens' eligibility for Medicaid as well as other public benefit programs. With respect to Medicaid, aliens are generally classified into two categories: “qualified aliens” and “non-qualified aliens.” The term “qualified alien” includes, but is not limited to, aliens who are lawfully admitted for permanent residence, granted asylum, designated as refugees, paroled into the United States for at least one year, or who have had their deportation withheld. (8 U.S.C. Sections 1641(b),(c)) Under PRWORA, certain qualified aliens are eligible for Medicaid coverage of all care and services, while other qualified aliens are ineligible for full Medicaid coverage for five years. Whether a qualified alien is entitled to full Medicaid coverage under PRWORA depends, in the first instance, on whether he or she entered the United States prior to August 22, 1996, the date of the federal law's enactment. Some, but not all, qualified aliens who were lawfully present in the United States prior to August 22, 1996, are eligible under PRWORA for full Medicaid benefits. (8 U.S.C. Section 1612(b)(2)) With certain exceptions, qualified aliens who entered the United States on or after August 22, 1996, are ineligible under PRWORA for Medicaid for five years. (8 U.S.C. Section 1613(a)) During this five year period, these qualified aliens are eligible only for Medicaid coverage of care and services related to treatment of an emergency medical condition. (8 U.S.C. Section 1613(c)(2)(A)) Other qualified aliens who entered the United States on or after August 22, 1996, are exempt from the five year ban on Medicaid eligibility. (8 U.S.C. Section 1613(b)) All other aliens are “non-qualified aliens” and, under PRWORA, are eligible only for Medicaid coverage of services necessary to treat an emergency medical condition. (8 U.S.C. Section 1611(b)(1)(A))

To implement the changes in Medicaid and other public benefit programs mandated by PRWORA, the Legislature enacted SSL Section 122 effective August 4, 1997. As a general rule, the State law's provisions respecting aliens' Medicaid eligibility are fully consistent with the federal law. This meant that certain qualified aliens who entered the United States on or after August 22, 1996, were temporarily disqualified from receiving Medicaid for five years. (SSL Section 122(1)(c)(i)) During this five year period, these qualified aliens were eligible only for Medicaid coverage of care and services necessary to treat an emergency medical condition. Aliens who were PRUCOL were now largely ineligible for Medicaid although they could, if otherwise eligible, receive Medicaid coverage of care and services necessary to treat an emergency medical condition. (SSL Section 122(1)(c)(ii)) An exception applied to nursing home residents and AIDS patients. The Legislature extended full Medicaid eligibility, payable solely from State and local monies, to nursing home residents and AIDS patients who were receiving Medicaid as of August 4, 1997, based upon their status as PRUCOL aliens. (SSL Section 122(1)(c))

In 1998, a proposed class of lawful aliens who were no longer eligible for Medicaid as a result of SSL Section 122 sued the Department, challenging the constitutionality of the State law's restrictions on Medicaid eligibility. On June 5, 2001, the New York Court of Appeals, in Aliessa v. Novello, held that SSL Section 122 violated Article XVII, Section 1, of the New York State Constitution (the “Aid to the Needy clause”) and the Equal Protection Clauses of the New York State and United States Constitutions to the extent that the State law denied Medicaid benefits to otherwise eligible aliens who were lawfully residing in New York State. This includes PRUCOL aliens and those qualified aliens who, under PRWORA, are subject to the five year ban on Medicaid eligibility. As a result of the Aliessa decision, social services districts could no longer deny Medicaid based on SSL Section 122 to otherwise eligible lawful aliens. These aliens are eligible to receive the full range of medically necessary care and services included in the State's Medicaid program.

The Legislature has not yet amended SSL Section 122 to reflect the Aliessa decision. The Department, however, is charged with the responsibility for promulgating such regulations as are necessary to implement the State's Medicaid plan in accordance with State law, which includes decisions of the State's highest appellate court, the Court of Appeals, respecting Medicaid eligibility.

Needs and Benefits:

Shortly after the Aliessa decision was issued, the Department advised social services districts of the Aliessa decision and that, effective June 1, 2001, districts must not deny or discontinue Medicaid benefits based on SSL Section 122 to otherwise eligible lawful aliens. Since that time, the Department has issued several additional directives to social services districts regarding their implementation of the Aliessa decision. The Department's regulations applicable to aliens' Medicaid eligibility are obsolete, however. These regulations, which are set forth at 18 NYCRR Section 360-3.2(j), do not accurately reflect the current Medicaid eligibility standards for aliens, as mandated by the Aliessa decision and the Department's directives to social services districts implementing such decision. The proposed regulations would repeal and reenact 18 NYCRR Section 360-3.2(j) to conform the Department's regulations to the Aliessa decision, as implemented by the Department since June 2001.

The proposed regulations implement the Aliessa decision by providing that qualified immigrants and PRUCOL aliens are eligible for Medicaid if they meet the program's other eligibility requirements. The term “qualified immigrant” is not a federal or State statutory term. Rather, the term “qualified immigrant,” as used in the Department's policy directives and in the proposed regulations, refers to those aliens who are “qualified aliens” within the meaning of PRWORA. Under PRWORA, certain of these qualified aliens are eligible only for emergency Medicaid coverage for five years. The proposed regulations make no such distinction. Each of the groups of “qualified immigrants” listed in the proposed regulation, may, if otherwise eligible, receive Medicaid coverage for all medically necessary care and services, not just services necessary to treat an emergency medical condition. The same is true for each category of PRUCOL aliens listed in the proposed regulations.

The proposed regulations re-enact the limitation on Medicaid eligibility for undocumented aliens and all other aliens who are not qualified immigrants or PRUCOL aliens. The Aliessa decision did not address such aliens' Medicaid eligibility and they continue to remain eligible only for Medicaid coverage of care and services related to the treatment of an emergency medical condition. An exception applies to pregnant women, who may receive pre-natal care benefits, if otherwise eligible, as required pursuant to SSL Section 122(6).

Costs:

Costs to Regulated Parties:

The proposed rules would not result in additional costs to regulated parties.

Costs to State and Local Governments:

The proposed rule, which amends the Department's regulations to reflect the Aliessa decision, will not, by itself, result in additional costs to State and local governments. However, State and local governments have incurred additional Medicaid costs to comply with the Aliessa decision. These costs are funded solely through State and local Medicaid funds. Under the federal Personal Responsibility and Work Opportunity Reconciliation Act, the lawful aliens to whom the Aliessa decision applies are “non-qualified aliens” and, as such, are not eligible for federally funded Medicaid, with the exception of care and services necessary to treat an emergency medical condition. The cost of all other medically necessary non-emergency care and services for which Aliessa aliens are eligible must thus be funded solely through State and local monies. In general, the State and local governments' shares of such costs are evenly split; however, the State pays a greater share of the cost of certain long term care services, such as nursing home care, personal care services and home health services, pursuant to SSL Section 368-a(1)(g).

For State Fiscal Year (“SFY”) 2003-‘04, which is the most recent fiscal year for which Medicaid expenditure data attributable to Aliessa are fully available, the Department estimates that the total cost to the State and to local governments of providing non-emergency Medicaid benefits to lawful aliens pursuant to the Aliessa decision was approximately $445.4 million. Of this amount, the State share is estimated to be approximately $234.7 million and the local share is estimated to be approximately $210.7 million. These cost estimates reflect costs that State and local governments expended for Medicaid services provided to lawful aliens who received traditional fee-for-service Medicaid as well as costs expended for Medicaid services provided to lawful aliens who were enrolled in Medicaid managed care plans and in Family Health Plus. The Department estimates that an average monthly total of 102,593 lawful aliens received Medicaid services under these programs in SFY 2003-‘04. Certain of these aliens also received Medicaid coverage during this period for care and services necessary to treat an emergency medical condition, for which federal reimbursement of approximately $4.4 million was available. The estimated total cost to the State and local governments of approximately $445.4 million for SFY 2003-‘04 reflects the cost of Medicaid services for which no federal reimbursement is available.

Preliminary data for SFY 2004–‘05 suggest that the total cost to the State and local governments of providing non-emergency Medicaid to lawful aliens pursuant to Aliessa will be approximately $472.7 million. Of this amount, the State share is estimated to be approximately $262.4 million and the local share is estimated to be approximately $210.3 million. The Department estimates that an average monthly total of 138,383 lawful aliens received Medicaid services during SFY 2004–‘05, whether from traditional fee-for-service Medicaid, managed care or Family Health Plus. Again, certain of these aliens also received Medicaid coverage for care and services necessary to treat an emergency medical condition, for which federal reimbursement is available.

Costs to the Department:

The proposed rules would not result in additional costs to the Department.

Local Government Mandates:

Under this State's Medicaid program, social services districts generally determine whether applicants for, and recipients of, Medicaid are eligible to receive, or to continue to receive, Medicaid coverage. The proposed regulations codify eligibility standards that districts must follow when determining aliens' eligibility for Medicaid. The Department has issued policy directives to social services districts that implement the Aliessa decision and that reflect the proposed regulation's requirements. Accordingly, social services districts have been responsible for adhering to these eligibility standards. The proposed regulations would not impose any further or additional mandates upon districts.

Paperwork:

Certain qualified immigrants, as defined in the proposed regulations, become eligible for federally-funded Medicaid only after five years. At the end of the five year period, social services districts are responsible for transitioning these cases to maximize federal reimbursement. This process is invisible to the recipient and is intended only to secure federal financial reimbursement, when available. The Department has instructed social services districts regarding their obligations in this regard. The proposed regulations do not otherwise impose any new forms, reporting or other paperwork requirements.

Duplication:

The proposed regulations do not duplicate or overlap any existing State or federal requirement. The proposed regulations may conflict with a provision of the federal Personal Responsibility and Work Opportunity Reconciliation Act. Non-emergency Medicaid care and services provided to Aliessa aliens is funded solely by State and local Medicaid funds. However, PRWORA provides that aliens who are not “qualified aliens” are ineligible for any “state or local public benefit” except through enactment of a state law after August 22, 1996, that affirmatively provides for such eligibility. (8 U.S.C. Section 1621) Although the Legislature has not enacted such a law, the State's Medicaid program may not, consistent with the State Constitution, lawfully deny State and local funded Medicaid benefits to otherwise eligible PRUCOL aliens who, although not “qualified aliens” within the meaning of the federal act, are nonetheless encompassed by the Aliessa decision.

Alternatives:

There are no significant alternatives to the proposed regulations. The Department's regulations applicable to aliens' Medicaid eligibility are obsolete and should be revised to reflect current eligibility standards that the Department has instructed social services districts to follow when complying with the Aliessa decision.

Federal Standards:

Federal standards governing aliens' Medicaid eligibility are set forth in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. The proposed regulations exceed these standards to the extent of extending Medicaid eligibility to otherwise eligible lawful aliens who are ineligible for federally funded Medicaid benefits.

Compliance Schedule:

Social services districts have been instructed to comply with the eligibility standards set forth in the proposed regulations and will thus be able to comply with the proposed regulations when they become effective.

Regulatory Flexibility Analysis

Effect of rule:

The proposed regulations would affect local governments that are social services districts. There are fifty-seven county social services districts and one city social services district. (Social Services Law (“SSL”) Section 61) These social services districts are generally responsible for determining whether Medicaid applicants and recipients meet the program's financial and other applicable eligibility requirements. (SSL Sections 365-a, 366, 366-a). One such eligibility requirement applies to alienage, which the proposed regulations address.

Compliance requirements:

Social services districts would be required to apply the standards set forth in the proposed regulations when determining whether aliens are eligible for Medicaid and, if so, the scope of Medicaid care and services they may receive. This is not a new compliance requirement. To implement the New York Court of Appeals decision in Aliessa v. Novello, 96 N.Y. 2d 418 (2001), the Department has issued directives to social services districts advising them how they must determine whether lawful aliens are eligible for Medicaid consistent with the Aliessa decision. Accordingly, social services districts should be fully familiar with these standards.

Professional services:

The proposed regulations would not require social services districts to employ additional professional services.

Compliance costs:

Pursuant to SSL Section 368-a, social services districts are responsible for a portion of the Medicaid costs for services provided to lawful aliens who are qualified immigrants or PRUCOL aliens, as defined in the proposed regulations. For State Fiscal Year (“SFY”) 2003–'04, which is the most recent fiscal year for which Medicaid expenditure data attributable to Aliessa are fully available, the Department estimates that the total cost to social services districts of providing non-emergency Medicaid to lawful aliens was approximately $210.7 million. Preliminary data for SFY 2004–'05 suggest that the total cost to social services districts of providing such Medicaid is approximately $210.3 million. Compliance costs will vary among social services districts depending upon the number of lawful aliens who reside in a district and whom the district determines to be eligible for Medicaid coverage of medically necessary care and services.

Economic and technological feasibility:

The proposed regulations are economically and technologically feasible.

Minimizing adverse impact:

Social services districts must determine Medicaid eligibility for aliens by applying eligibility standards that are consistent with State law as interpreted by the State's highest appellate court in the Aliessa decision. The Department has endeavored to limit the adverse impact upon social services districts through the issuance of comprehensive directives that instruct districts regarding how they must determine Medicaid eligibility for lawful aliens consistent with the Aliessa decision. On several occasions, the Department has also conducted training for social services district staff on Medicaid eligibility for aliens.

Small business and local government participation:

Social services district staff participated in the training sessions that the Department conducted. These training sessions, and the material that the Department distributed at such sessions, addressed Medicaid eligibility for aliens in a manner consistent with the proposed regulations.

Rural Area Flexibility Analysis

Types and estimated numbers of rural areas:

The proposed regulations would affect county social services districts in rural areas.

Reporting, recordkeeping and other compliance requirements; and professional services:

Social services districts would be required to apply the standards set forth in the proposed regulations when determining whether aliens are eligible for Medicaid as qualified immigrants or PRUCOL aliens. Social services districts would also be responsible assuring that the Medicaid cases of those qualified immigrants whose Medicaid benefits become eligible for federal financial participation after five years are appropriately transitioned to assure maximum federal reimbursement. The proposed regulations do not otherwise impose any reporting, recordkeeping or compliance requirements. Nor would the proposed regulations require social services districts to employ additional professional services.

Costs:

All social services districts, including county social services districts in rural areas, are responsible for a portion of the Medicaid costs for services provided to lawful aliens who are qualified immigrants or PRUCOL aliens.

Minimizing adverse impact:

All social services districts, rural and urban, must determine Medicaid eligibility consistent with the Court of Appeals decision in Aliessa v. Novello, 96 N.Y. 2d 418 (2001), which the proposed regulations reflect. Demographics, however, may result in a diminished effect upon rural social services districts. It is likely that the proposed regulations would have a greater impact upon social services districts located in metropolitan social services districts, such as New York City, that have a larger immigrant population than do rural social services districts.

Rural area participation:

County social services districts located in rural areas participated in training sessions that the Department conducted to familiarize districts with Medicaid eligibility requirements for lawful aliens in the wake of Aliessa.

Job Impact Statement

The proposed regulations would provide for Medicaid eligibility for aliens consistent with current practice and the decision of the New York Court of Appeals in Aliessa v. Novello, 96 N.Y.2d 418 (2001).

The proposed regulations would not have a substantial adverse impact on jobs and employment opportunities.