Section 365-A. Character and adequacy of assistance

1. The amount, nature
  and manner of providing medical assistance for needy  persons  shall  be
  determined by the public welfare official with the advice of a physician
  and  in  accordance  with  the  local  medical plan, this title, and the
  regulations of the department.
    2. "Medical assistance" shall mean payment of part or all of the  cost
  of  medically  necessary medical, dental and remedial care, services and
  supplies, as  authorized  in  this  title  or  the  regulations  of  the
  department,  which  are  necessary to prevent, diagnose, correct or cure
  conditions in the person that  cause  acute  suffering,  endanger  life,
  result  in  illness  or infirmity, interfere with such person's capacity
  for normal activity, or threaten some significant handicap and which are
  furnished an eligible person in  accordance  with  this  title  and  the
  regulations  of  the  department. Such care, services and supplies shall
  include the following medical care, services and supplies, together with
  such medical care, services and supplies provided  for  in  subdivisions
  three,  four  and  five of this section, and such medical care, services
  and supplies as are authorized in the regulations of the department:
    (a) services of qualified physicians, dentists,  nurses,  and  private
  duty  nursing  services  shall  be  further subject to the provisions of
  section three hundred sixty-seven-o of this chapter,  optometrists,  and
  other related professional personnel;
    (b)  care,  treatment,  maintenance and nursing services in hospitals,
  nursing homes that qualify as providers in the medicare program pursuant
  to title XVIII of the federal social security act, infirmaries or  other
  eligible  medical  institutions, and health-related care and services in
  intermediate  care  facilities,  while  operated  in   compliance   with
  applicable provisions of this chapter, the public health law, the mental
  hygiene law and other laws, including any provision thereof requiring an
  operating  certificate  or  license,  or  where  such facilities are not
  conveniently  accessible,  in  hospitals  located  without  the   state;
  provided,   however,  that  care,  treatment,  maintenance  and  nursing
  services in nursing homes or in intermediate care facilities,  including
  those  operated  by  the state department of mental hygiene or any other
  state department or agency, shall, for persons who are receiving or  who
  are  eligible  for  medical  assistance under provisions of subparagraph
  four of paragraph (a)  of  subdivision  one  of  section  three  hundred
  sixty-six  of this chapter, be limited to such periods of time as may be
  determined necessary in accordance with a utilization  review  procedure
  established  by  the state commissioner of health providing for a review
  of medical necessity, in the case of skilled nursing care, every  thirty
  days  for the first ninety days and every ninety days thereafter, and in
  the case of care in an intermediate care facility, at  least  every  six
  months,  or more frequently if indicated at the time of the last review,
  consistent  with  federal  utilization  review  requirements;  provided,
  further,  that  in-patient  care,  services  and  supplies  in a general
  hospital shall not exceed such standards as the commissioner  of  health
  shall  promulgate  but  in no case greater than twenty days per spell of
  illness during which all or any part of the cost of such care,  services
  and  supplies  are  claimed  as an item of medical assistance, unless it
  shall have been determined in accordance with  procedures  and  criteria
  established  by  such commissioner that a further identifiable period of
  in-patient general hospital care is required for particular patients  to
  preserve  life or to prevent substantial risks of continuing disability;
  provided further, that in-patient  care,  services  and  supplies  in  a
  general  hospital  shall,  in  the  case  of a person admitted to such a
  facility on a Friday or  Saturday,  be  deemed  to  include  only  those
  in-patient  days beginning with and following the Sunday after such date

  of admission, unless such care, services and supplies are furnished  for
  an  actual  medical  emergency  or  pre-operative  care  for  surgery as
  provided in paragraph (d) of subdivision five of this  section,  or  are
  furnished  because  of  the necessity of emergency or urgent surgery for
  the alleviation of severe pain or the necessity for immediate  diagnosis
  or  treatment  of  conditions  which threaten disability or death if not
  promptly diagnosed or treated; provided, however, in-patient days  of  a
  general  hospital admission beginning on a Friday or a Saturday shall be
  included commencing with the day of  admission  in  a  general  hospital
  which  the  commissioner  or  his designee has found to be rendering and
  which continues to render full service on a seven day a week basis which
  determination shall be made after taking into consideration such factors
  as the routine  availability  of  operating  room  services,  diagnostic
  services  and  consultants,  laboratory services, radiological services,
  pharmacy services, staff patterns consistent with full services and such
  other factors as the commissioner or his designee  deems  necessary  and
  appropriate;  provided,  further,  that  in-patient  care,  services and
  supplies in a general hospital shall  not  include  care,  services  and
  supplies  furnished  to  patients  for  certain uncomplicated procedures
  which may be performed  on  an  out-patient  basis  in  accordance  with
  regulations  of  the  commissioner  of health, unless the person or body
  designated by such commissioner determines that the medical condition of
  the individual patient requires that the procedure be  performed  on  an
  in-patient basis;
    (c)  out-patient hospital or clinic services in facilities operated in
  compliance with applicable provisions of this chapter, the public health
  law, the mental hygiene law and other  laws,  including  any  provisions
  thereof  requiring  an  operating  certificate or license, or where such
  facilities are not conveniently  accessible,  in  any  hospital  located
  without  the  state  and  care  and  services in a day treatment program
  operated by the department of mental hygiene or by  a  voluntary  agency
  under  an  agreement  with  such  department  in  that  part of a public
  institution operated and approved pursuant to  law  as  an  intermediate
  care facility for the mentally retarded;
    (d) home health services provided in a recipient's home and prescribed
  by  a physician including services of a nurse provided on a part-time or
  intermittent basis rendered by an approved home health agency or  if  no
  such agency is available, by a registered nurse, licensed to practice in
  this  state,  acting  under  the  written orders of a physician and home
  health aide service by an individual  or  shared  aide  provided  by  an
  approved home health agency when such services are determined to be cost
  effective  and  appropriate to meet the recipient's needs for assistance
  subject to the provisions of section  three  hundred  sixty-seven-j  and
  section three hundred sixty-seven-o of this title;
    * (e)  personal  care  services  in  a recipient's home rendered by an
  individual, not a member of the family, who is qualified to provide such
  services, where the services are prescribed by a physician in accordance
  with a plan of treatment and  are  supervised  by  a  registered  nurse;
  provided,  however,  that recipients will receive personal care services
  at the medically indicated level, consistent with standards developed by
  the  commissioner   in   consultation   with   local   social   services
  commissioners  provided, however, that such standards shall not apply to
  persons receiving personal  care  services  pursuant  to  section  three
  hundred sixty-seven-c of this chapter or persons residing in family care
  homes  or  community residences as defined in subdivision twenty-eight-a
  of section 1.03 of the mental hygiene law certified  by  the  office  of
  mental  health  or  the  office  of mental retardation and developmental
  disabilities.

    * NB Expired March 31, 1985
    (e)  personal  care  services,  including  personal emergency response
  services, shared aide and an individual aide, furnished to an individual
  who is not an inpatient or resident of  a  hospital,  nursing  facility,
  intermediate care facility for the mentally retarded, or institution for
  mental  disease,  as  determined  to  meet  the  recipient's  needs  for
  assistance when  cost  effective  and  appropriate  in  accordance  with
  section   three   hundred   sixty-seven-k   and  section  three  hundred
  sixty-seven-o of this title, and when  prescribed  by  a  physician,  in
  accordance  with  the  recipient's  plan  of  treatment  and provided by
  individuals  who  are  qualified  to  provide  such  services,  who  are
  supervised  by  a  registered  nurse  and  who  are  not  members of the
  recipient's family, and furnished  in  the  recipient's  home  or  other
  location;
    (f)  preventive,  prophylactic and other routine dental care, services
  and supplies;
    (g) sickroom supplies, eyeglasses, prosthetic  appliances  and  dental
  prosthetic  appliances  furnished  in accordance with the regulations of
  the department, provided that the commissioner of health  is  authorized
  to  implement a preferred diabetic supply program wherein the department
  of health will receive enhanced rebates from preferred manufacturers  of
  glucometers   and   test   strips,   and   may   subject   non-preferred
  manufacturers' glucometers and test strips to prior authorization  under
  section  two  hundred  seventy-three  of  the  public  health law; drugs
  provided on an in-patient basis,  those  drugs  contained  on  the  list
  established  by  regulation  of  the  commissioner of health pursuant to
  subdivision four of this section, and  those  drugs  which  may  not  be
  dispensed  without  a  prescription  as  required by section sixty-eight
  hundred ten of the education law and which the  commissioner  of  health
  shall  determine  to  be  reimbursable  based  upon  such factors as the
  availability of such drugs or alternatives at low cost if purchased by a
  medicaid recipient, or the essential nature of such drugs  as  described
  by such commissioner in regulations, provided, however, that such drugs,
  exclusive   of  long-term  maintenance  drugs,  shall  be  dispensed  in
  quantities no greater than a thirty day supply  or  one  hundred  doses,
  whichever  is  greater; provided further that the commissioner of health
  is authorized to  require  prior  authorization  for  any  refill  of  a
  prescription  when  less  than  seventy-five  percent  of the previously
  dispensed amount per fill should have been used were the product used as
  normally indicated;  medical  assistance  shall  not  include  any  drug
  provided  on  other  than  an  in-patient basis for which a recipient is
  charged or a claim is made in the case of a prescription drug, in excess
  of the maximum reimbursable amounts  to  be  established  by  department
  regulations in accordance with standards established by the secretary of
  the  United  States  department of health and human services, or, in the
  case of a drug not requiring a prescription, in excess  of  the  maximum
  reimbursable  amount  established by the commissioner of health pursuant
  to paragraph (a) of subdivision four of this section;
    (h)  physical  therapy  and  relative  rehabilitative  services   when
  provided at the direction of a physician;
    (i) laboratory and x-ray services; and
    (j)  transportation  when  essential and appropriate to obtain medical
  care, services  and  supplies  otherwise  available  under  the  medical
  assistance   program   in  accordance  with  this  section,  upon  prior
  authorization, except when required in order to obtain  emergency  care,
  and  when  not  otherwise  available  to the recipient free of charge or
  through a transportation program implemented pursuant to  section  three
  hundred  sixty-five-h  of this title and approved by the commissioner of

  health for which  federal  financial  participation  is  claimed  as  an
  administrative cost;
    * (k)   care   and   services   furnished  by  an  entity  offering  a
  comprehensive  health  services  plan,  including  an  entity  that  has
  received  a  certificate  of  authority  pursuant to sections forty-four
  hundred three, forty-four hundred three-a or forty-four hundred  eight-a
  of the public health law (as added by chapter six hundred thirty-nine of
  the  laws  of  nineteen  hundred  ninety-six)  or  a  health maintenance
  organization authorized under article forty-three of the insurance  law,
  to  eligible  individuals residing in the geographic area served by such
  entity, when such services are furnished in accordance with an agreement
  approved by the department which meets the requirements of  federal  law
  and regulations provided, that no such agreement shall allow for medical
  assistance payments on a capitated basis for nursing facility, home care
  or  other  long  term  care  services of a duration and scope defined in
  regulations of the department of health promulgated pursuant to  section
  forty-four  hundred three-f of the public health law, unless such entity
  has received a certificate of authority as a managed long term care plan
  or is an operating demonstration or is an  approved  managed  long  term
  care demonstration, pursuant to such section.
    * NB Effective until December 31, 2015
    * (k)   care   and   services   furnished  by  an  entity  offering  a
  comprehensive health services plan to eligible individuals  residing  in
  the  geographic  area  served  by  such  entity,  when such services are
  furnished in accordance with an agreement  approved  by  the  department
  which meets the requirements of federal law and regulations.
    * NB Effective December 31, 2015
    (l)  care  and  services  of podiatrists which care and services shall
  only be provided upon referral by a  physician,  nurse  practitioner  or
  certified  nurse  midwife  in  accordance  with the program of early and
  periodic screening and diagnosis  established  pursuant  to  subdivision
  three  of  this  section or to persons eligible for benefits under title
  XVIII  of  the  federal  social  security  act  as  qualified   medicare
  beneficiaries  in  accordance  with  federal  requirements  therefor and
  private duty nurses which care and services shall only  be  provided  in
  accordance  with  regulations  of  the  department  of health; provided,
  however, that private duty nursing services shall not be restricted when
  such services are  more  appropriate  and  cost-effective  than  nursing
  services  provided  by  a  home  health agency pursuant to section three
  hundred sixty-seven-l;
    (m) hospice services provided  by  a  hospice  certified  pursuant  to
  article  forty  of  the  public  health  law, to the extent that federal
  financial  participation  is  available,  and,  notwithstanding  federal
  financial  participation  and  any provision of law or regulation to the
  contrary,  for  hospice  services  provided  pursuant  to  the   hospice
  supplemental financial assistance program for persons with special needs
  as provided for in article forty of the public health law.
    * (n)  care  and  services of audiologists provided in accordance with
  regulations of the department of health.
    * NB There are two ù (n)'s
    * (n) care, treatment, maintenance and  rehabilitation  services  that
  would  otherwise  qualify  for reimbursement pursuant to this chapter to
  persons suffering from alcoholism in alcoholism facilities  or  chemical
  dependence,  as  such  term  is  defined  in  section 1.03 of the mental
  hygiene law, in inpatient chemical dependence facilities,  services,  or
  programs  operated  in  compliance  with  applicable  provisions of this
  chapter and the mental hygiene law,  and  certified  by  the  office  of
  alcoholism  and  substance  abuse  services,  provided however that such

  services shall be limited to such periods of time as may  be  determined
  necessary  in accordance with a utilization review procedure established
  by the commissioner of the office  of  alcoholism  and  substance  abuse
  services  and  provided  further, that this paragraph shall not apply to
  any hospital or part of a hospital as defined in  section  two  thousand
  eight hundred one of the public health law.
    * NB There are two ù (n)'s
    * (o)  care and services furnished by a managed long term care plan or
  approved managed long term care demonstration pursuant to the provisions
  of section forty-four hundred  three-f  of  the  public  health  law  to
  eligible  individuals  residing  in  the  geographic area served by such
  entity, when such services are furnished in accordance with an agreement
  with the department of health and meet the  applicable  requirements  of
  federal law and regulation.
    * NB Repealed December 31, 2015
    * (p) targeted case management services provided to children who
    (i) are eighteen years of age or under; and
    (ii) either
    (1)  are  physically  disabled,  according to the federal supplemental
  security income program criteria, including but not limited to a  person
  who is multiply disabled; or
    (2)  have  a  developmental  disability,  as  defined  in  subdivision
  twenty-two of section 1.03 of the mental  hygiene  law  and  demonstrate
  complex  health  needs as defined in paragraph c of subdivision seven of
  section three hundred sixty-six of this title; or
    (3) have a mental illness, as defined in subdivision twenty of section
  1.03 of the mental hygiene law and demonstrate complex health or  mental
  health  care  needs  as  defined  in  paragraph d of subdivision nine of
  section three hundred sixty-six of this title; and
    (iii) require the level of  care  provided  by  an  intermediate  care
  facility  for  the  developmentally  disabled,  a  nursing  facility,  a
  hospital or any other institution; and
    (iv) are capable of being cared for in the community if provided  with
  case  management  services  and/or  other  services  provided under this
  title; and
    (v) are capable of being cared for in the community at less cost  than
  in the appropriate institutional setting; and
    (vi)   are   not   receiving  services  under  section  three  hundred
  sixty-seven-c of this title and for whom services provided under section
  three  hundred  sixty-seven-a  of  this  title  are  not  available   or
  sufficient to support the children's care in the community.
    * NB Repealed January 1, 2011
    (q)  diabetes  self-management training services for persons diagnosed
  with diabetes when such services are ordered by a physician,  registered
  physician's   assistant,  registered  nurse  practitioner,  or  licensed
  midwife and provided by a licensed, registered, or certified health care
  professional, as determined  by  the  commissioner  of  health,  who  is
  certified as a diabetes educator by the National Certification Board for
  Diabetes   Educators,  or  a  successor  national  certification  board;
  provided, however, that the provisions of this paragraph shall not  take
  effect  unless  all necessary approvals under federal law and regulation
  have been obtained to receive federal  financial  participation  in  the
  costs  of  health  care  services  provided  pursuant to this paragraph.
  Nothing in this paragraph shall be construed to  modify  any  licensure,
  certification  or  scope  of practice provision under title eight of the
  education law.
    (r) asthma self-management training  services  for  persons  diagnosed
  with  asthma  when  such services are ordered by a physician, registered

  physician's  assistant,  registered  nurse  practitioner,  or   licensed
  midwife and provided by a licensed, registered, or certified health care
  professional,  as  determined  by  the  commissioner  of  health, who is
  certified  as  an  asthma  educator  by  the  National  Asthma  Educator
  Certification  Board,  or  a  successor  national  certification  board;
  provided,  however, that the provisions of this paragraph shall not take
  effect unless all necessary approvals under federal law  and  regulation
  have  been  obtained  to  receive federal financial participation in the
  costs of health care  services  provided  pursuant  to  this  paragraph.
  Nothing  in  this  paragraph shall be construed to modify any licensure,
  certification or scope of practice provision under title  eight  of  the
  education law.
    (s)  smoking  cessation  counseling services for pregnant women on any
  day of pregnancy through the end of the month in which the  one  hundred
  eightieth  day  following  the end of the pregnancy occurs, and children
  and adolescents ten to nineteen years of age,  during  a  medical  visit
  when   provided  by  a  general  hospital  outpatient  department  or  a
  free-standing  clinic,  or  by  a  physician,   registered   physician's
  assistant,   registered   nurse  practitioner  or  licensed  midwife  in
  office-based settings; provided, however, that the  provisions  of  this
  paragraph  relating  to  smoking cessation counseling services shall not
  take effect  unless  all  necessary  approvals  under  federal  law  and
  regulation have been obtained to receive federal financial participation
  in the costs of such services.
    * (t)  cardiac  rehabilitation  services when ordered by the attending
  physician and provided in a hospital-based or free-standing clinic in an
  area set aside for cardiac rehabilitation, or in a  physician's  office;
  provided,  however,  that  the  provisions of this paragraph relating to
  cardiac  rehabilitation  services  shall  not  take  effect  unless  all
  necessary  approvals under federal law and regulation have been obtained
  to  receive  federal  financial  participation  in  the  costs  of  such
  services.
    * NB Effective January 1, 2010
    (u)  screening,  brief  intervention,  and  referral  to  treatment in
  hospital emergency departments of  individuals  at  risk  for  substance
  abuse  including  referral  to the appropriate level of intervention and
  treatment in a community setting; provided, however, that the provisions
  of  this  paragraph  relating  to  screening,  brief  intervention,  and
  referral  to  treatment  services  shall  not  take  effect  unless  all
  necessary approvals under federal law and regulation have been  obtained
  to receive federal financial participation in such costs.
    3.  Any  inconsistent  provisions  of  this  section  notwithstanding,
  medical assistance shall include:
    (a) early and periodic screening and  diagnosis  of  eligible  persons
  under  six  years  of  age  and,  in  accordance  with  federal  law and
  regulations, early and periodic  screening  and  diagnosis  of  eligible
  persons  under  twenty-one years of age to ascertain physical and mental
  disabilities; and
    (b) care and treatment of disabilities and  conditions  discovered  by
  such  screening and diagnosis including such care, services and supplies
  as the commissioner shall by regulation require to the extent  necessary
  to conform to applicable federal law and regulations.
    (c)  screening,  diagnosis,  care  and  treatment  of disabilities and
  conditions discovered  by  such  screening  and  diagnosis  of  eligible
  persons  ages  three  to  twenty-one,  inclusive,  including  such care,
  services and supplies as the commissioner shall by regulation require to
  the  extent  necessary  to  conform  to  applicable  federal   law   and
  regulations, provided that such screening, diagnosis, care and treatment

  shall include the provision of evaluations and related services rendered
  pursuant  to article eighty-nine of the education law and regulations of
  the commissioner of education  by  persons  qualified  to  provide  such
  services thereunder.
    (d)  family  planning  services  and  supplies for eligible persons of
  childbearing age, including children under twenty-one years of  age  who
  can  be  considered  sexually  active,  who  desire  such  services  and
  supplies, in  accordance  with  the  requirements  of  federal  law  and
  regulations  and  the  regulations of the department. No person shall be
  compelled or coerced to accept such services or supplies.
    4.  Any  inconsistent  provision  of  law   notwithstanding,   medical
  assistance  shall  not  include,  unless  required  by  federal  law and
  regulation  as  a  condition  of  qualifying   for   federal   financial
  participation  in  the  medicaid  program,  the following items of care,
  services and supplies:
    (a) drugs which may be dispensed without a prescription as required by
  section sixty-eight hundred ten of the education law; provided, however,
  that the state commissioner of health may by regulation specify  certain
  of  such  drugs which may be reimbursed as an item of medical assistance
  in accordance with the price schedule established by such commissioner;
    * (a-1) (i) a brand name drug for which a multi-source therapeutically
  and generically equivalent drug, as determined by the federal  food  and
  drug  administration,  is available, unless previously authorized by the
  department of health.  The  commissioner  of  health  is  authorized  to
  exempt,  for good cause shown, any brand name drug from the restrictions
  imposed by this subparagraph. This subparagraph shall not apply  to  any
  drug  that is in a therapeutic class included on the preferred drug list
  under section two hundred seventy-two of the public health law or is  in
  the  clinical drug review program under section two hundred seventy-four
  of the public health law;
    (ii) notwithstanding  the  provisions  of  subparagraph  (i)  of  this
  paragraph,  the  commissioner  is authorized to deny reimbursement for a
  generic equivalent, including  a  generic  equivalent  that  is  on  the
  preferred  drug  list  or the clinical drug review program, when the net
  cost of the brand name drug, after consideration of all rebates, is less
  than the cost of the generic equivalent, unless prior  authorization  is
  obtained  under  section  two hundred seventy-three of the public health
  law;
    * NB Effective until June 15, 2012
    * (a-1) A brand name drug for which a multi-source therapeutically and
  generically equivalent drug, as determined by the federal food and  drug
  administration,  is  available,  unless  previously  authorized  by  the
  department of health.  The  commissioner  of  health  is  authorized  to
  exempt,  for good cause shown, any brand name drug from the restrictions
  imposed by this paragraph;
    * NB Effective June 15, 2012
    * (a-2) drugs which may not be dispensed  without  a  prescription  as
  required  by  section  sixty-eight hundred ten of the education law, and
  which  are  non  preferred  drugs  pursuant  to  section   two   hundred
  seventy-two  of  the  public  health  law,  or  the clinical drug review
  program under section two hundred seventy-four of the public health law,
  unless prior authorization is granted or not required;
    * NB Repealed June 15, 2012
    (b) care and services of chiropractors and  supplies  related  to  the
  practice of chiropractic;
    (c)  care  and services of an optometrist for using drugs in excess of
  the maximum  reimbursable  amounts  for  optometric  care  and  services

  established  by  the  commissioner  and  approved by the director of the
  budget;
    (d)  any  medical  care,  services  or  supplies furnished outside the
  state, except, when  prior  authorized  in  accordance  with  department
  regulations or for care, services and supplies furnished: as a result of
  a  medical  emergency;  because  the  recipient's health would have been
  endangered if he or she had  been  required  to  travel  to  the  state;
  because  the  care,  services or supplies were more readily available in
  the other state; or because it  is  the  general  practice  for  persons
  residing  in  the  locality wherein the recipient resides to use medical
  providers in the other state;
    (e) drugs, procedures and  supplies  for  the  treatment  of  erectile
  dysfunction  when provided to, or prescribed for use by, a person who is
  required to register as a sex offender pursuant to article six-C of  the
  correction  law,  provided  that any denial of coverage pursuant to this
  paragraph  shall  provide  the  patient  with  the  means  of  obtaining
  additional  information  concerning  both  the  denial  and the means of
  challenging such denial; or
    (f) drugs for the treatment of sexual or erectile dysfunction,  unless
  such  drugs are used to treat a condition, other than sexual or erectile
  dysfunction, for which the drugs have been approved by the federal  food
  and drug administration.
    (g)  for  eligible  persons who are also beneficiaries under part D of
  title XVIII  of  the  federal  social  security  act,  drugs  which  are
  denominated  as  "covered part D drugs" under section 1860D-2(e) of such
  act; provided however that, for purposes  of  this  paragraph,  "covered
  part D drugs" shall not mean atypical anti-psychotics, anti-depressants,
  anti-retrovirals  used  in  the treatment of HIV/AIDS, or anti-rejection
  drugs used for the treatment of organ and tissue transplants.
    5.  (a)  Medical  assistance  shall  include  surgical  benefits   for
  emergency  or  urgent  surgery  for  the alleviation of severe pain, for
  immediate diagnosis or treatment of conditions which threaten disability
  or death if not promptly diagnosed or treated.
    (b) Medical assistance shall include  surgical  benefits  for  certain
  surgical  procedures  which meet standards for surgical intervention, as
  established by  the  state  commissioner  of  health  on  the  basis  of
  medically  indicated risk factors, and medically necessary surgery where
  delay in surgical intervention would substantially increase the  medical
  risk associated with such surgical intervention.
    (c)  Medical  assistance  shall  include  surgical  benefits for other
  deferrable surgical procedures specified by the  state  commissioner  of
  health, based on the likelihood that deferral of such procedures for six
  months  or  more  may  jeopardize  life  or essential function, or cause
  severe pain; provided,  however,  such  deferrable  surgical  procedures
  shall  be  included in the case of in-patient surgery only when a second
  written  opinion  is  obtained  from  a  physician,  or   as   otherwise
  prescribed,  in  accordance  with  regulations  established by the state
  commissioner of health, that such surgery should not be deferred.
    (d) Medical assistance shall include a maximum of one patient  day  of
  pre-operative  hospital care for surgery authorized by paragraphs (b) or
  (c) of  this  subdivision;  provided,  however,  that  with  respect  to
  specific  surgical procedures which the state commissioner of health has
  identified as requiring more than one patient day of pre-operative care,
  medical  assistance  shall  include  such  longer  maximum   period   of
  pre-operative care as such commissioner has identified as necessary.
    (e)  Medical  assistance  shall  not  include  any in-patient surgical
  procedures or any care, services or supplies  related  to  such  surgery
  other than those authorized by this subdivision.

    6.   Any   inconsistent  provision  of  law  notwithstanding,  medical
  assistance shall also include payment  for  medical  care,  services  or
  supplies  furnished  to  eligible pregnant women under the prenatal care
  assistance  program  established  pursuant  to  title  two  of   article
  twenty-five of the public health law, to the extent that and for so long
  as  federal  financial  participation  is  available therefor; provided,
  however, that nothing in this section shall be deemed to affect  payment
  for  such  medical  care,  services  or  supplies  if  federal financial
  participation is not available for  such  care,  services  and  supplies
  solely  by  reason  of  the immigration status of the otherwise eligible
  pregnant woman.
    7.  Medical  assistance  shall  also  include  disproportionate  share
  payments to general hospitals under the public health law.
    8.  When  a  non-governmental  entity  is authorized by the department
  pursuant to contract or subcontract to make prior authorization or prior
  approval determinations that may be required for  any  item  of  medical
  assistance, a recipient may challenge any action taken or failure to act
  in connection with a prior authorization or prior approval determination
  as  if such determination were made by a government entity, and shall be
  entitled to the same medical assistance benefits and  standards  and  to
  the  same notice and procedural due process rights, including a right to
  a fair hearing and aid continuing pursuant to section twenty-two of this
  chapter, as if the prior authorization or prior  approval  determination
  were made by a government entity.