Requires the state to pay medicare part A premiums for persons eligible for medicare part A and medical assistance and requires local commissioners of social services to appeal denial of medicare coverage before approving medical assistance coverage for long term care.
STATE OF NEW YORK
________________________________________________________________________
6658--A
2009-2010 Regular Sessions
IN ASSEMBLY
March 11, 2009
___________
Introduced by M. of A. SCHIMMINGER, DelMONTE -- Multi-Sponsored by -- M.
of A. HOOPER, J. RIVERA, N. RIVERA, TOWNS -- read once and referred to
the Committee on Health -- recommitted to the Committee on Health in
accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the social services law, in relation to requiring the
state to pay medicare part A premiums for persons eligible for medi-
care part A and medical assistance and to require local commissioners
of social services to appeal denial of medicare coverage before
approving medical assistance coverage for long term care
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 1 and 2 of section 364-i of the social
2 services law, as amended by chapter 693 of the laws of 1996, are amended
3 to read as follows:
4 1. An individual, upon application for medical assistance, shall be
5 presumed eligible for such assistance for a period of sixty days from
6 the date of transfer from a general hospital, as defined in section
7 twenty-eight hundred one of the public health law to a certified home
8 health agency [or long term home health care program], as defined in
9 section thirty-six hundred two of the public health law, or to a hospice
10 as defined in section four thousand two of the public health law, or to
11 a residential health care facility as defined in section twenty-eight
12 hundred one of the public health law, if the local department of social
13 services determines that the applicant meets each of the following
14 criteria: (a) the applicant is receiving acute care in such hospital;
15 (b) a physician certifies that such applicant no longer requires acute
16 hospital care, but still requires medical care which can be provided by
17 a certified home health agency, [long term home health care program,]
18 hospice or residential health care facility; (c) the applicant or his or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06787-04-0
A. 6658--A 2
1 her representative states that the applicant does not have insurance
2 coverage for the required medical care and that such care cannot be
3 afforded; (d) it reasonably appears that the applicant is otherwise
4 eligible to receive medical assistance; (e) it reasonably appears that
5 the amount expended by the state and the local social services district
6 for medical assistance in a certified home health agency, [long term
7 home health care program,] hospice or residential health care facility,
8 during the period of presumed eligibility, would be less than the amount
9 the state and the local social services district would expend for
10 continued acute hospital care for such person; and (f) such other deter-
11 minative criteria as the commissioner shall provide by rule or regu-
12 lation. If a person has been determined to be presumptively eligible for
13 medical assistance, pursuant to this subdivision, and is subsequently
14 determined to be ineligible for such assistance, the commissioner, on
15 behalf of the state and the local social services district shall have
16 the authority to recoup from the individual the sums expended for such
17 assistance during the period of presumed eligibility.
18 2. Payment for up to sixty days of care for services provided under
19 the medical assistance program shall be made for an applicant presumed
20 eligible for medical assistance pursuant to subdivision one of this
21 section provided, however, that such payment shall not exceed sixty-five
22 percent of the rate payable under this title for services provided by a
23 certified home health agency, [long term home health care program,]
24 hospice or residential health care facility. Notwithstanding any other
25 provision of law, no federal financial participation shall be claimed
26 for services provided to a person while presumed eligible for medical
27 assistance under this program until such person has been determined to
28 be eligible for medical assistance by the local social services
29 district. During the period of presumed medical assistance eligibility,
30 payment for services provided persons presumed eligible under this
31 program shall be made from state funds. Upon the final determination of
32 eligibility by the local social services district, payment shall be made
33 for the balance of the cost of such care and services provided to such
34 applicant for such period of eligibility and a retroactive adjustment
35 shall be made by the department to appropriately reflect federal finan-
36 cial participation and the local share of costs for the services
37 provided during the period of presumptive eligibility. Such federal and
38 local financial participation shall be the same as that which would have
39 occurred if a final determination of eligibility for medical assistance
40 had been made prior to the provision of the services provided during the
41 period of presumptive eligibility. In instances where an individual who
42 is presumed eligible for medical assistance is subsequently determined
43 to be ineligible, the cost for services provided to such individual
44 shall be reimbursed in accordance with the provisions of section three
45 hundred sixty-eight-a of this [article] title. Provided, however, if
46 upon audit the department determines that there are subsequent determi-
47 nations of ineligibility for medical assistance in at least fifteen
48 percent of the cases in which presumptive eligibility has been granted
49 in a local social services district, payments for services provided to
50 all persons presumed eligible and subsequently determined ineligible for
51 medical assistance shall be divided equally by the state and the
52 district.
53 § 2. Paragraph (d) of subdivision 2 of section 365-f of the social
54 services law, as added by chapter 81 of the laws of 1995, is amended to
55 read as follows:
A. 6658--A 3
1 (d) meets such other criteria, as may be established by the commis-
2 sioner, which are necessary to effectively implement the objectives of
3 this section. Such criteria shall include, but not be limited to, a
4 requirement that any person who is eligible for, or reasonably appears
5 to meet the criteria of eligibility for, benefits under subchapter XVIII
6 of the federal social security act shall be required to apply for and
7 fully utilize such benefits in accordance with this chapter to defray
8 the costs of the program. If such person applies for such benefits under
9 subchapter XVIII of the federal social security act and such person's
10 application therefor is denied, such person must appeal such denial or
11 permit the local social services official to do so on his or her behalf.
12 If such person receives such benefits under subchapter XVIII of the
13 federal social security act and such person's continuing receipt thereof
14 is terminated, such person must appeal such termination or permit the
15 local social services official to do so on his or her behalf.
16 § 3. Subparagraph 1 of paragraph (b) of subdivision 2 of section 366
17 of the social services law, as amended by chapter 638 of the laws of
18 1993 and designated by chapter 170 of the laws of 1994, is amended to
19 read as follows:
20 (1) In establishing standards for determining eligibility for and
21 amount of such assistance, the department shall take into account only
22 such income and resources, in accordance with federal requirements, as
23 are available to the applicant or recipient and as would not be required
24 to be disregarded or set aside for future needs, and there shall be a
25 reasonable evaluation of any such income or resources. The department
26 shall not consider the availability of an option for an accelerated
27 payment of death benefits or special surrender value pursuant to para-
28 graph one of subsection (a) of section one thousand one hundred thirteen
29 of the insurance law, or an option to enter into a viatical settlement
30 pursuant to the provisions of article seventy-eight of the insurance
31 law, as an available resource in determining eligibility for an amount
32 of such assistance, provided, however, that the payment of such benefits
33 shall be considered in determining eligibility for and amount of such
34 assistance. There shall not be taken into consideration the financial
35 responsibility of any individual for any applicant or recipient of
36 assistance under this title unless such applicant or recipient is such
37 individual's spouse or such individual's child who is under twenty-one
38 years of age. In determining the eligibility of a child who is categori-
39 cally eligible as blind or disabled, as determined under regulations
40 prescribed by the social security act for medical assistance, the income
41 and resources of parents or spouses of parents are not considered avail-
42 able to that child if [she/he] he or she does not regularly share the
43 common household even if the child returns to the common household for
44 periodic visits. In the application of standards of eligibility with
45 respect to income, costs incurred for medical care, whether in the form
46 of insurance premiums or otherwise, shall be taken into account. Any
47 person who is eligible for, or reasonably appears to meet the criteria
48 of eligibility for, benefits under [title] subchapter XVIII of the
49 federal social security act shall be required to apply for and fully
50 utilize such benefits in accordance with this chapter. In the case of a
51 person who is receiving or seeking long term care, benefits under
52 subchapter XVIII of the federal social security act shall be fully
53 utilized in accordance with this chapter to defray the costs of such
54 long term care. If such person applies for such benefits under subchap-
55 ter XVIII of the federal social security act and such person's applica-
56 tion therefor is denied, such person must appeal such denial or permit
A. 6658--A 4
1 the local social services official to do so on his or her behalf. If
2 such person receives such benefits under subchapter XVIII of the federal
3 social security act and such person's continuing receipt thereof is
4 terminated, such person must appeal such termination or permit the local
5 social services official to do so on his or her behalf.
6 § 4. Subparagraph (v) of paragraph b of subdivision 6-a of section 366
7 of the social services law, as amended by chapter 627 of the laws of
8 2004, is amended to read as follows:
9 (v) meet such other criteria as may be established by the commissioner
10 of health as may be necessary to administer the provision of this subdi-
11 vision in an equitable manner. Such criteria shall include, but not be
12 limited to, a requirement that any person who is eligible for, or
13 reasonably appears to meet the criteria of eligibility for, benefits
14 under subchapter XVIII of the federal social security act shall be
15 required to apply for and fully utilize such benefits in accordance with
16 this chapter to defray the costs of the program. If such person applies
17 for such benefits under subchapter XVIII of the federal social security
18 act and such person's application therefor is denied, such person must
19 appeal such denial or permit the local social services official to do so
20 on his or her behalf. If such person receives such benefits under
21 subchapter XVIII of the federal social security act and such person's
22 continuing receipt thereof is terminated, such person must appeal such
23 termination or permit the local social services official to do so on his
24 or her behalf.
25 § 5. Subparagraph (viii) of paragraph b of subdivision 9 of section
26 366 of the social services law, as added by chapter 170 of the laws of
27 1994, is amended to read as follows:
28 (viii) meet such other criteria as may be established by the commis-
29 sioner of mental health, in conjunction with the commissioner, as may be
30 necessary to administer the provisions of this subdivision in an equita-
31 ble manner, including those criteria established pursuant to paragraph e
32 of this subdivision. Such criteria shall include, but not be limited to,
33 a requirement that any person who is eligible for, or reasonably appears
34 to meet the criteria of eligibility for, benefits under subchapter XVIII
35 of the federal social security act shall be required to apply for and
36 fully utilize such benefits in accordance with this chapter to defray
37 the costs of the program. If such person applies for such benefits under
38 subchapter XVIII of the federal social security act and such person's
39 application therefor is denied, such person must appeal such denial or
40 permit the local social services official to do so on his or her behalf.
41 If such person receives such benefits under subchapter XVIII of the
42 federal social security act and such person's continuing receipt thereof
43 is terminated, such person must appeal such termination or permit the
44 local social services official to do so on his or her behalf.
45 § 6. The social services law is amended by adding a new section 366-i
46 to read as follows:
47 § 366-i. Long term care; other cases. In all cases not otherwise
48 provided for in this title of a person who is receiving or seeking long
49 term care, benefits under subchapter XVIII of the federal social securi-
50 ty act shall be fully utilized in accordance with this chapter to defray
51 the costs of such long term care. If such person applies for such bene-
52 fits under subchapter XVIII of the federal social security act and such
53 person's application therefor is denied, such person must appeal such
54 denial or permit the local social services official to do so on his or
55 her behalf. If such person receives such benefits under subchapter
56 XVIII of the federal social security act and such person's continuing
A. 6658--A 5
1 receipt thereof is terminated, such person must appeal such termination
2 or permit the local social services official to do so on his or her
3 behalf.
4 § 7. Subdivision 3 of section 367-a of the social services law is
5 amended by adding a new paragraph (e) to read as follows:
6 (e) Notwithstanding any inconsistent provision of this section or of
7 any other law, for any person who is eligible for medical assistance and
8 for medicare under subchapter XVIII of the federal social security act,
9 the cost of the premium for medicare part A shall be borne by the state.
10 § 8. Subdivision 7 of section 367-c of the social services law, as
11 added by chapter 895 of the laws of 1977 and renumbered by chapter 854
12 of the laws of 1987, is amended to read as follows:
13 7. No social services district shall make payments pursuant to [title]
14 subchapter XIX of the federal Social Security Act for benefits available
15 under [title] subchapter XVIII of such act without documentation that
16 [title] subchapter XVIII claims have been filed and denied. Upon such
17 denial, such person must appeal such denial or permit the local social
18 services official to do so on his or her behalf. If such person receives
19 such benefits under subchapter XVIII of the federal social security act
20 and such person's continuing receipt thereof is terminated, such person
21 must appeal such termination or permit the local social services offi-
22 cial to do so on his or her behalf.
23 § 9. Subdivision 3 of section 367-e of the social services law, as
24 added by chapter 622 of the laws of 1988, is amended to read as follows:
25 3. The commissioner shall apply for any waivers, including home and
26 community based services waivers pursuant to section nineteen hundred
27 fifteen-c of the social security act, necessary to implement AIDS home
28 care programs. Notwithstanding any inconsistent provision of law but
29 subject to expenditure limitations of this section, the commissioner,
30 subject to the approval of the state director of the budget, may author-
31 ize the utilization of medical assistance funds to pay for services
32 provided by AIDS home care programs in addition to those services
33 included in the medical assistance program under section three hundred
34 sixty-five-a of this [chapter] title, so long as federal financial
35 participation is available for such services. Expenditures made under
36 this subdivision shall be deemed payments for medical assistance for
37 needy persons and shall be subject to reimbursement by the state in
38 accordance with the provisions of section three hundred sixty-eight-a of
39 this [chapter] title. Any person who is eligible for, or reasonably
40 appears to meet the criteria of eligibility for, benefits under subchap-
41 ter XVIII of the federal social security act shall be required to apply
42 for and fully utilize such benefits in accordance with this chapter to
43 defray the costs of the program. If such person applies for such bene-
44 fits under subchapter XVIII of the federal social security act and such
45 person's application therefor is denied, such person must appeal such
46 denial or permit the local social services official to do so on his or
47 her behalf. If such person receives such benefits under subchapter
48 XVIII of the federal social security act and such person's continuing
49 receipt thereof is terminated, such person must appeal such termination
50 or permit the local social services official to do so on his or her
51 behalf.
52 § 10. Subdivision 2 of section 367-f of the social services law, as
53 added by chapter 659 of the laws of 1997, is amended to read as follows:
54 2. Notwithstanding any inconsistent provision of this chapter or any
55 other law to the contrary, the partnership for long term care program
56 shall provide Medicaid extended coverage to a person receiving long term
A. 6658--A 6
1 care services if there is federal participation pursuant to such treat-
2 ment and such person: (a) is or was covered by an insurance policy or
3 certificate providing coverage for long term care which meets the appli-
4 cable minimum benefit standards of the superintendent of insurance and
5 other requirements for approval of participation under the program; and,
6 (b) has exhausted the coverage and benefits as required by the program.
7 Any such person who is receiving medical assistance and who is eligible
8 for, or reasonably appears to meet the criteria of eligibility for,
9 benefits under subchapter XVIII of the federal social security act shall
10 be required to apply for and fully utilize such benefits in accordance
11 with this chapter to defray the costs of the program. If such person
12 applies for such benefits under subchapter XVIII of the federal social
13 security act and such person's application therefor is denied, such
14 person must appeal such denial or permit the local social services offi-
15 cial to do so on his or her behalf. If such person receives such bene-
16 fits under subchapter XVIII of the federal social security act and such
17 person's continuing receipt thereof is terminated, such person must
18 appeal such termination or permit the local social services official to
19 do so on his or her behalf.
20 § 11. This act shall take effect on the one hundred twentieth day
21 after it shall have become a law; provided that the commissioner of
22 health is authorized to promulgate any and all rules and regulations and
23 take any other measures necessary to implement this act on its effective
24 date on or before such date.
