
    In the Matter of Frank Orlando, Respondent, v Barbara Blum, as Commissioner of the New York State Department of Social Services, Appellant, and Joseph D’Elia, as Commissioner of the Nassau County Department of Social Services, Respondent.
   In a proceeding pursuant to CPLR article 78 to review a determination of the State Commissioner of Social Services, dated January 24, 1978 and made after a statutory fair hearing, which affirmed a determination of the local agency denying petitioner’s application for medical assistance, the State commissioner appeals from a judgment of the Supreme Court, Nassau County, entered October 3, 1978, which remanded the matter to the local agency for reconsideration upon the basis of one month’s excess income (the criterion for out-patient treatment) rather than six months’ excess income (the criterion for in-patient treatment). Permission for the taking of the appeal is hereby granted by Mr. Justice Cohalan. Judgment modified, on the law, by deleting therefrom everything following the words "petitioner’s application for medical assistance” and substituting therefor a provision that the application be reconsidered on the basis of (a) the net cost to petitioner of the unpaid medical expenses and (b) six months’ excess income. As so modified, judgment affirmed, without costs or disbursements. It was error to direct the local agency to reconsider the petitioner’s application for medical assistance upon the basis of one month’s excess income since the criterion for in-patient treatment is six months’ excess income (see 18 NYCRR 360.5 [d] [2]; Matter of Poulos v D’Elia, 66 AD2d 820; Matter of Rickenbacker v Toia, 68 AD2d 871). The application should be considered upon the basis of six months’ excess income (which the agency properly did) and also upon the basis of the cost to the patient of the medical expenses (see Matter of Watkins v Toia, 57 AD2d 628, 629, affd 46 NY2d 773). Mollen, P. J., Cohalan, O’Connor and Weinstein, JJ., concur.  