A00624 Summary:

BILL NOA00624
 
SAME ASNo Same As
 
SPONSORGantt
 
COSPNSR
 
MLTSPNSR
 
Amd S369-ee, Soc Serv L
 
Establishes resource level requirements for the family health plus program.
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A00624 Actions:

BILL NOA00624
 
01/07/2015referred to health
01/06/2016referred to health
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A00624 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A624
 
SPONSOR: Gantt
  TITLE OF BILL: An act to amend the social services law, in relation to establishing resource level requirements for the family health plus program   PURPOSE OR GENERAL IDEA OF BILL: This bill aims to place a restriction on the eligibility requirements for the family health plus program. Specifically, certain assets held by potential recipients; applicants will not be considered upon applica- tion for the program.   SUMMARY OF SPECIFIC PROVISIONS: Section 1. Amends section 369 of the social services law, stating that medicare provided under Part A of Title XVIII of the federal social security act shall be deemed to not be an equivalent healthcare coverage under insurance or an equivalent mechanism. Amends section 369 by adding a new provision which aims to define and list all exempt resources that are not to be considered for eligibility for family health plus. Amends section 369 by adding a new provision which lists all assets and trusts that are to be considered for determining assistance under family health plus. Amends section 369 by adding a new provision that lists all asset trans- fers that are to be considered for determining assistance under family health plus.   JUSTIFICATION: Currently, most social services programs have asset cap requirements. Presently, there is no assessment of the amount of available assets that a recipient or applicant may possess within the application process. This legislation changes the nature of requirements upon which appli- cants may request for assistance from the family health plus. Personal assets, such as trusts, that have a potential for a monetary return are not to be exempt from consideration for this program. Though assets are not considered as immediate monetary income, they are, nonetheless an available resource of wealth. This legislation places a cap on the value of assets that they may have in their possession, or through a transfer. This will establish increased efficiency within the family health plus program by providing services to applicants and recipients who need it most. It will also deter applicants who seek to abuse the social services system by using a loophole that does not acknowledge available resources of wealth.   LEGISLATIVE HISTORY: 2009-2010: A.2767 2011-2012: A.995 2013-2014: A.1163   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the nineteenth day after it shall have become a law; provided that the commissioner is authorized to promulgate any and all rules and regulations and take any other measures necessary to implement this act on its effective date on or before such date.
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A00624 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           624
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 7, 2015
                                       ___________
 
        Introduced  by M. of A. GANTT -- read once and referred to the Committee
          on Health
 
        AN ACT to amend the social services law,  in  relation  to  establishing
          resource level requirements for the family health plus program
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subparagraph (iii) of paragraph (a)  of  subdivision  2  of
     2  section  369-ee of the social services law, as added by chapter 1 of the
     3  laws of 1999 and as further amended by section 104 of part A of  chapter
     4  62 of the laws of 2011, is amended to read as follows:
     5    (iii) does not have equivalent health care coverage under insurance or
     6  equivalent  mechanisms,  as  defined by the commissioner in consultation
     7  with the superintendent of financial services; and for purposes of  this
     8  subparagraph, medicare provided pursuant to part A of title XVIII of the
     9  federal  social  security  act  shall  be deemed to not be an equivalent
    10  health care coverage under insurance or an equivalent mechanism;
    11    § 2. Subparagraph (iii) of paragraph (a) of subdivision 2  of  section
    12  369-ee of the social services law, as amended by section 68 of part C of
    13  chapter  58 of the laws of 2009 and as further amended by section 104 of
    14  part A of chapter 62 of the laws of 2011, is amended to read as follows:
    15    (iii) does not have equivalent health care coverage under insurance or
    16  equivalent mechanisms, as defined by the  commissioner  in  consultation
    17  with  the superintendent of financial services; and for purposes of this
    18  subparagraph, medicare provided pursuant to part A of title XVIII of the
    19  federal social security act shall be deemed  to  not  be  an  equivalent
    20  health care coverage under insurance or an equivalent mechanism;
    21    §  3.  Paragraph  (b) of subdivision 2 of section 369-ee of the social
    22  services law, as amended by section 45-d of part C of chapter 58 of  the
    23  laws  of  2008,  and the opening paragraph as amended by section 59-c of
    24  part C of chapter 58 of the laws of 2009, is amended to read as follows:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02902-01-5

        A. 624                              2
 
     1    (b) Subject to the provisions of paragraph (d) of this subdivision, in
     2  order to establish eligibility under this subdivision, which shall  also
     3  be  determined  [without]  with regard to resources, an individual shall
     4  provide such documentation as is necessary and sufficient to  initially,
     5  and annually thereafter, determine an applicant's eligibility for cover-
     6  age  under  this  title.  Such  documentation  shall include, but not be
     7  limited to the following, if needed to verify eligibility:
     8    (i) paycheck stubs; or
     9    (ii) written documentation of income from all employers; or
    10    (iii) other documentation of income (earned or unearned) as determined
    11  by the commissioner, provided  however,  such  documentation  shall  set
    12  forth the source of such income; and
    13    (iv)  proof of identity and residence as determined by the commission-
    14  er.
    15    The commissioner of health may verify the accuracy of the  information
    16  provided  by  the  individual  pursuant to this paragraph by matching it
    17  against information to which  the  commissioner  of  health  has  access
    18  including  under  subdivision eight of section three hundred sixty-six-a
    19  of this article.
    20    § 4. Section 369-ee of the social services law is  amended  by  adding
    21  two new subdivisions 2-c and 2-d to read as follows:
    22    2-c. Exempt resources. (a) The following resources shall be exempt and
    23  shall  not  be taken into consideration in determining a person's eligi-
    24  bility for medical care, services  and  supplies  available  under  this
    25  title:
    26    (i) a homestead which is essential and appropriate to the needs of the
    27  household;
    28    (ii) essential personal property;
    29    (iii) a burial fund, to the extent allowed as an exempt resource under
    30  the  cash  assistance  program  to  which  the applicant is most closely
    31  related;
    32    (iv) savings in amounts equal to  at  least  one-half  of  the  income
    33  amount  permitted  under subparagraph seven of paragraph (a) of subdivi-
    34  sion two of section three hundred sixty-six of this  article,  provided,
    35  however, that the amounts for one and two person households shall not be
    36  less than the amounts permitted to be retained by households of the same
    37  size  in  order  to  qualify for benefits under the federal supplemental
    38  security income program;
    39    (v) health insurance premiums.
    40    No other resources, including federal old-age, survivors and disabili-
    41  ty insurance, state disability insurance or  other  payroll  deductions,
    42  whether  mandatory  or optional, shall be exempt and all other resources
    43  shall be taken into consideration and required to be applied toward  the
    44  payment  or  partial  payment  of  the cost of medical care and services
    45  available under this section, to the extent permitted by federal law.
    46    (b) (i) In establishing standards for determining eligibility for  and
    47  amount  of  such  assistance,  the  department of health shall take into
    48  account only such resources, in accordance with federal requirements, as
    49  are available to the applicant or recipient and as would not be required
    50  to be disregarded or set aside for future needs, and there  shall  be  a
    51  reasonable  evaluation  of  any such resources. The department of health
    52  shall not consider the availability of  an  option  for  an  accelerated
    53  payment  of  death benefits or special surrender value pursuant to para-
    54  graph one of subsection (a) of section one thousand one hundred thirteen
    55  of the insurance law, or an option to enter into a  viatical  settlement
    56  pursuant  to  the  provisions  of article seventy-eight of the insurance

        A. 624                              3
 
     1  law, as an available resource in determining eligibility for  an  amount
     2  of such assistance, provided, however, that the payment of such benefits
     3  shall  be  considered  in determining eligibility for and amount of such
     4  assistance.  There  shall  not be taken into consideration the financial
     5  responsibility of any individual  for  any  applicant  or  recipient  of
     6  assistance under this section unless such applicant or recipient is such
     7  individual's  spouse  or such individual's child who is under twenty-one
     8  years of age. In determining the eligibility of a child who is categori-
     9  cally eligible as blind or disabled,  as  determined  under  regulations
    10  prescribed  by  the  social  security  act  for  medical assistance, the
    11  resources of parents or spouses of parents are not considered  available
    12  to that child if he or she does not regularly share the common household
    13  even if the child returns to the common household for periodic visits.
    14    (ii)  In  evaluating  the  resources  available to an applicant for or
    15  recipient of medical assistance, for purposes of determining eligibility
    16  for and the amount of such assistance, the  department  of  health  must
    17  consider assets held in or paid from trusts created by such applicant or
    18  recipient,  as  determined pursuant to the regulations of the department
    19  of health, in accordance with the provisions of this subparagraph.
    20    (A) In the case of a revocable trust created by an applicant or recip-
    21  ient, as determined pursuant to regulations of the department of  health
    22  the trust corpus must be considered to be an available resource.
    23    (B)  In  the  case  of an irrevocable trust created by an applicant or
    24  recipient, as determined pursuant to regulations of  the  department  of
    25  health  any  portion of the trust corpus, and of the income generated by
    26  the trust corpus, from which payment could be made to or for the benefit
    27  of such applicant or recipient must be considered  to  be  an  available
    28  resource.
    29    (C)  Notwithstanding  the  provisions  of  clauses (A) and (B) of this
    30  subparagraph, in the case of an applicant or recipient who is  disabled,
    31  as  such  term  is  defined  in section 1614(a)(3) of the federal social
    32  security act, the department of health must not  consider  as  available
    33  resources the corpus or income of the following trusts which comply with
    34  the  provisions  of  the  regulations  authorized  by clause (D) of this
    35  subparagraph:
    36    (I) a trust containing the assets of such a disabled individual  which
    37  was  established  for  the benefit of the disabled individual while such
    38  individual was under sixty-five years of age by a  parent,  grandparent,
    39  legal guardian, or court of competent jurisdiction, if upon the death of
    40  such  individual  the  state  will  receive all amounts remaining in the
    41  trust up to the total value of all medical assistance paid on behalf  of
    42  such individual; and
    43    (II)  a  trust  containing  the  assets  of such a disabled individual
    44  established and managed by  a  non-profit  association  which  maintains
    45  separate  accounts  for  the  benefit  of disabled individuals, but, for
    46  purposes  of  investment  and  management  of  trust  funds,  pools  the
    47  accounts, provided that accounts in the trust fund are established sole-
    48  ly  for  the  benefit  of  individuals  who are disabled as such term is
    49  defined in section 1614(a)(3) of the federal social security act by such
    50  disabled individual, a parent, grandparent, legal guardian, or court  of
    51  competent  jurisdiction, and to the extent that amounts remaining in the
    52  individual's account are not retained by the trust upon the death of the
    53  individual, the state will receive all such remaining amounts up to  the
    54  total value of all medical assistance paid on behalf of such individual.
    55  Notwithstanding  any  law  to the contrary, a not-for-profit corporation
    56  may, in furtherance of and as an adjunct to its corporate purposes,  act

        A. 624                              4
 
     1  as trustee of a trust for persons with disabilities established pursuant
     2  to this subclause, provided that a trust company, as defined in subdivi-
     3  sion seven of section one hundred-c of the banking law, acts as co-trus-
     4  tee.
     5    (D)  The department of health shall promulgate such regulations as may
     6  be necessary to carry out the  provisions  of  this  subparagraph.  Such
     7  regulations  shall  include  provisions for: assuring the fulfillment of
     8  fiduciary obligations of the  trustee  with  respect  to  the  remainder
     9  interest of the department of health or state; monitoring pooled trusts;
    10  applying this subdivision to legal instruments and other devices similar
    11  to  trusts, in accordance with applicable federal rules and regulations;
    12  and establishing procedures under which the application of this subdivi-
    13  sion will be waived with respect to an applicant or recipient who demon-
    14  strates that such application would work an undue  hardship  on  him  or
    15  her,  in  accordance  with  standards  specified by the secretary of the
    16  federal department of health and human services.  Such  regulations  may
    17  require  notification  of  the  department of the creation or funding of
    18  such a trust for the benefit of an applicant for or recipient of medical
    19  assistance; notification of the department of health of the death  of  a
    20  beneficiary  of  such  a  trust  who is a current or former recipient of
    21  medical assistance; in the case of a trust, the corpus of which  exceeds
    22  one  hundred  thousand dollars, notification of the department of health
    23  of transactions tending  to  substantially  deplete  the  trust  corpus;
    24  notification  of  the department of health of any transactions involving
    25  transfers from the trust corpus for less than  fair  market  value;  the
    26  bonding  of  the trustee when the assets of such a trust equal or exceed
    27  one million dollars, unless a court  of  competent  jurisdiction  waives
    28  such requirement; and the bonding of the trustee when the assets of such
    29  a  trust  are  less  than  one million dollars, upon order of a court of
    30  competent jurisdiction.   The department of health,  together  with  the
    31  banking  department,  shall  promulgate regulations governing the estab-
    32  lishment, management and monitoring of  trust  established  pursuant  to
    33  subclause  (II)  of  clause (C) of this subparagraph in which a not-for-
    34  profit corporation and a trust company serve as co-trustees.
    35    (E) Notwithstanding any acts, omissions or failures to act of a  trus-
    36  tee of a trust which the department of health or a local social services
    37  official  has  determined complies with the provisions of clause (C) and
    38  the regulations authorized by  clause  (D)  of  this  subparagraph,  the
    39  department  must  not consider the corpus or income of any such trust as
    40  available resources of the applicant or recipient who  is  disabled,  as
    41  such term is defined in section 1614(a)(3) of the federal social securi-
    42  ty act. The department of health's remedy for redress of any acts, omis-
    43  sions  or  failures  to  act  by such a trustee whose acts, omissions or
    44  failures are considered by the department of health to  be  inconsistent
    45  with the terms of the trust, contrary to applicable laws and regulations
    46  of the department of health, or contrary to the fiduciary obligations of
    47  the  trustee  shall be the commencement of an action or proceeding under
    48  subdivision one of section sixty-three of the executive law to safeguard
    49  or enforce the state's remainder interest in the trust,  or  such  other
    50  action  or  proceeding  as  may  be  lawful and appropriate as to assure
    51  compliance by the trustee  or  to  safeguard  and  enforce  the  state's
    52  remainder interest in the trust.
    53    2-d. Resource eligibility requirements. (a) In determining the initial
    54  or  continuing  eligibility  of  any  person  for  assistance under this
    55  section, there shall be included in the amount of  resources  considered
    56  available  to such person the uncompensated value of any resource trans-

        A. 624                              5
 
     1  ferred, and such person shall be ineligible for such assistance for such
     2  period or periods as specified in this subdivision.
     3    (b) (i) A nonexempt resource shall mean any resource which if retained
     4  by  such  person  would  not  be  exempt  from  consideration  under the
     5  provisions of subdivision two-c of this section;
     6    (ii) Any transfer of a  nonexempt  resource  made  within  twenty-four
     7  months  prior  to the date of a person's application for medical assist-
     8  ance shall be presumed to have been made for the purpose  of  qualifying
     9  for  such  assistance;  however,  if  such  person furnishes evidence to
    10  establish that the transfer was exclusively for some other purpose,  the
    11  uncompensated  value shall not be considered available to such person in
    12  determining his or her initial  or  continued  eligibility  for  medical
    13  assistance;
    14    (iii)  The  uncompensated value of any such resource shall be the fair
    15  market value of such resource at the time of transfer, minus the  amount
    16  of the compensation received by the person in exchange for the resource;
    17    (iv)  Excess  resources  shall  be  the  total of a person's nonexempt
    18  resources above twenty thousand dollars;
    19    (v) Any person determined to have resources in excess of twenty  thou-
    20  sand  dollars  shall  be  ineligible  for  assistance under this section
    21  pursuant to subparagraphs (vi) and (vii) of this paragraph;
    22    (vi) Any person determined to have excess resources of  fifteen  thou-
    23  sand  dollars or less because of the application of this paragraph shall
    24  remain ineligible for assistance under this title for a period of  twen-
    25  ty-four  months  from the date of the transfer, or until such person can
    26  demonstrate that he or she has incurred medical expenses after the  date
    27  of  transfer  in  the  amount  of  such excess above otherwise allowable
    28  resources, whichever period is shorter;
    29    (vii) Any person determined to have  excess  resources  of  more  than
    30  fifteen  thousand  dollars  because of the application of this paragraph
    31  shall remain ineligible for assistance under this section for  a  period
    32  which  exceeds  twenty-four  months, which period shall be determined by
    33  adding an additional  month  of  ineligibility  for  each  two  thousand
    34  dollars  in excess of fifteen thousand dollars, or until such person can
    35  demonstrate that he or she has incurred medical expenses after the  date
    36  of  transfer  in  the  amount  of  such excess above otherwise allowable
    37  resources, whichever period is shorter.
    38    (c) Any transfer of a resource by a person or such person's spouse for
    39  less than fair market value made within or after the thirty months imme-
    40  diately preceding the date of application for medical  assistance  under
    41  this  section,  shall  render  the  person  ineligible  for  health care
    42  services for a period of twenty-four months from the date  of  transfer,
    43  which  period shall be determined by adding an additional month of inel-
    44  igibility for each two thousand dollars in excess  of  fifteen  thousand
    45  dollars,  or  until  such  person  can  demonstrate  that  he or she has
    46  incurred medical expenses after the date of transfer in  the  amount  of
    47  such  excess  above  allowable  resources,  whichever period is shorter;
    48  however, a person shall not be ineligible for health care services sole-
    49  ly by reason of any such transfer to the extent that:
    50    (i) the resource transferred was a home and  title  to  the  home  was
    51  transferred to:
    52    (A) the spouse of such person; or
    53    (B) a child of such person who is under the age of twenty-one years or
    54  certified  blind  or  certified  permanently  and  totally  disabled, as
    55  defined by section two hundred eight of this article; or

        A. 624                              6
 
     1    (C) a sibling of such person who has an equity interest in  such  home
     2  and  who  resided  in  such home for a period of at least one year imme-
     3  diately before the date the person applied for medical assistance pursu-
     4  ant to this section; or
     5    (D) a son or daughter of such person who was residing in such home for
     6  a  period  of at least two years immediately before the date such person
     7  applied for  medical  assistance  pursuant  to  this  section,  and  who
     8  provided  care  to  such person which permitted such person to reside at
     9  home rather than in an institution or facility; or
    10    (ii) the resource was transferred to or for the sole benefit  of  such
    11  person's spouse, or from such person's spouse to or for the sole benefit
    12  of  such person, or to his or her child who is certified blind or certi-
    13  fied permanently and totally disabled; or
    14    (iii) a satisfactory showing is made that:
    15    (A) the person or such person's spouse  intended  to  dispose  of  the
    16  resource  either  at  fair market value, or for other valuable consider-
    17  ation, or
    18    (B) the resource was transferred exclusively for a purpose other  than
    19  to qualify for medical assistance; or
    20    (iv) denial of eligibility would work an undue hardship, as defined by
    21  the  commissioner  which  definition  shall include the inability of the
    22  person or such person's spouse to retrieve the  resource  or  to  obtain
    23  fair market value therefor despite his or her best efforts.
    24    (d)  The  commissioner  shall promulgate such rules and regulations as
    25  may be necessary to carry out the provisions of this subdivision.
    26    § 5. This act shall take effect on the ninetieth day  after  it  shall
    27  have  become  a law; provided however that section one of this act shall
    28  remain in effect until the approval of the commissioner of health pursu-
    29  ant to subdivision 4 of section 79 of part C of chapter 58 of  the  laws
    30  of  2005,  when upon such date the provisions of section two of this act
    31  shall take effect; and provided further that the commissioner of  health
    32  is  authorized  to promulgate any and all rules and regulations and take
    33  any other measures necessary to implement this act on its effective date
    34  on or before such date.
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