STATE OF NEW YORK
________________________________________________________________________
2767
2009-2010 Regular Sessions
IN ASSEMBLY
January 21, 2009
___________
Introduced by M. of A. GANTT -- read once and referred to the Committee
on Social Services
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, is amended to read as follows:
4 (iii) does not have equivalent health care coverage under insurance or
5 equivalent mechanisms, as defined by the commissioner in consultation
6 with the superintendent of insurance; and for purposes of this subpara-
7 graph, medicare provided pursuant to part A of title XVIII of the feder-
8 al social security act shall be deemed to not be an equivalent health
9 care coverage under insurance or an equivalent mechanism;
10 § 2. Subparagraph (iii) of paragraph (a) of subdivision 2 of section
11 369-ee of the social service law, as amended by section 28 of part E of
12 chapter 63 of the laws of 2005, is amended to read as follows:
13 (iii) does not have equivalent health care coverage under insurance or
14 equivalent mechanisms, as defined by the commissioner in consultation
15 with the superintendent of insurance, and is not a federal, state, coun-
16 ty, municipal or school district employee that is eligible for health
17 care coverage through his or her employer; 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, is amended to read as follows:
24 (b) Subject to the provisions of paragraph (d) of this subdivision, in
25 order to establish income eligibility under this subdivision, which
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05901-01-9
A. 2767 2
1 shall also be determined with regard to resources, an individual shall
2 provide such documentation as is necessary and sufficient to initially,
3 and annually thereafter, determine an applicant's eligibility for cover-
4 age under this title. Such documentation shall include, but not be
5 limited to the following, if needed to verify eligibility:
6 (i) paycheck stubs; or
7 (ii) written documentation of income from all employers; or
8 (iii) other documentation of income (earned or unearned) as determined
9 by the commissioner, provided however, such documentation shall set
10 forth the source of such income; and
11 (iv) proof of identity and residence as determined by the commission-
12 er.
13 The commissioner of health may verify the accuracy of the information
14 provided by the individual pursuant to this paragraph by matching it
15 against information to which the commissioner of health has access
16 including under subdivision eight of section three hundred sixty-six-a
17 of this article.
18 § 4. Section 369-ee of the social services law is amended by adding
19 two new subdivisions 2-c and 2-d to read as follows:
20 2-c. Exempt resources. (a) The following resources shall be exempt and
21 shall not be taken into consideration in determining a person's eligi-
22 bility for medical care, services and supplies available under this
23 title:
24 (i) a homestead which is essential and appropriate to the needs of the
25 household;
26 (ii) essential personal property;
27 (iii) a burial fund, to the extent allowed as an exempt resource under
28 the cash assistance program to which the applicant is most closely
29 related;
30 (iv) savings in amounts equal to at least one-half of the income
31 amount permitted under subparagraph seven of paragraph (a) of subdivi-
32 sion two of section three hundred sixty-six of this article, provided,
33 however, that the amounts for one and two person households shall not be
34 less than the amounts permitted to be retained by households of the same
35 size in order to qualify for benefits under the federal supplemental
36 security income program;
37 (v) health insurance premiums.
38 No other resources, including federal old-age, survivors and disabili-
39 ty insurance, state disability insurance or other payroll deductions,
40 whether mandatory or optional, shall be exempt and all other resources
41 shall be taken into consideration and required to be applied toward the
42 payment or partial payment of the cost of medical care and services
43 available under this section, to the extent permitted by federal law.
44 (b)(i) In establishing standards for determining eligibility for and
45 amount of such assistance, the department of health shall take into
46 account only such resources, in accordance with federal requirements, as
47 are available to the applicant or recipient and as would not be required
48 to be disregarded or set aside for future needs, and there shall be a
49 reasonable evaluation of any such resources. The department of health
50 shall not consider the availability of an option for an accelerated
51 payment of death benefits or special surrender value pursuant to para-
52 graph one of subsection (a) of section one thousand one hundred thirteen
53 of the insurance law, or an option to enter into a viatical settlement
54 pursuant to the provisions of article seventy-eight of the insurance
55 law, as an available resource in determining eligibility for an amount
56 of such assistance, provided, however, that the payment of such benefits
A. 2767 3
1 shall be considered in determining eligibility for and amount of such
2 assistance. There shall not be taken into consideration the financial
3 responsibility of any individual for any applicant or recipient of
4 assistance under this section unless such applicant or recipient is such
5 individual's spouse or such individual's child who is under twenty-one
6 years of age. In determining the eligibility of a child who is categori-
7 cally eligible as blind or disabled, as determined under regulations
8 prescribed by the social security act for medical assistance, the
9 resources of parents or spouses of parents are not considered available
10 to that child if he or she does not regularly share the common household
11 even if the child returns to the common household for periodic visits.
12 (ii) In evaluating the resources available to an applicant for or
13 recipient of medical assistance, for purposes of determining eligibility
14 for and the amount of such assistance, the department of health must
15 consider assets held in or paid from trusts created by such applicant or
16 recipient, as determined pursuant to the regulations of the department
17 of health, in accordance with the provisions of this subparagraph.
18 (A) In the case of a revocable trust created by an applicant or recip-
19 ient, as determined pursuant to regulations of the department of health
20 the trust corpus must be considered to be an available resource.
21 (B) In the case of an irrevocable trust created by an applicant or
22 recipient, as determined pursuant to regulations of the department of
23 health any portion of the trust corpus, and of the income generated by
24 the trust corpus, from which payment could be made to or for the benefit
25 of such applicant or recipient must be considered to be an available
26 resource.
27 (C) Notwithstanding the provisions of clauses (A) and (B) of this
28 subparagraph, in the case of an applicant or recipient who is disabled,
29 as such term is defined in section 1614(a)(3) of the federal social
30 security act, the department of health must not consider as available
31 resources the corpus or income of the following trusts which comply with
32 the provisions of the regulations authorized by clause (D) of this
33 subparagraph:
34 (I) a trust containing the assets of such a disabled individual which
35 was established for the benefit of the disabled individual while such
36 individual was under sixty-five years of age by a parent, grandparent,
37 legal guardian, or court of competent jurisdiction, if upon the death of
38 such individual the state will receive all amounts remaining in the
39 trust up to the total value of all medical assistance paid on behalf of
40 such individual; and
41 (II) a trust containing the assets of such a disabled individual
42 established and managed by a non-profit association which maintains
43 separate accounts for the benefit of disabled individuals, but, for
44 purposes of investment and management of trust funds, pools the
45 accounts, provided that accounts in the trust fund are established sole-
46 ly for the benefit of individuals who are disabled as such term is
47 defined in section 1614(a)(3) of the federal social security act by such
48 disabled individual, a parent, grandparent, legal guardian, or court of
49 competent jurisdiction, and to the extent that amounts remaining in the
50 individual's account are not retained by the trust upon the death of the
51 individual, the state will receive all such remaining amounts up to the
52 total value of all medical assistance paid on behalf of such individual.
53 Notwithstanding any law to the contrary, a not-for-profit corporation
54 may, in furtherance of and as an adjunct to its corporate purposes, act
55 as trustee of a trust for persons with disabilities established pursuant
56 to this subclause, provided that a trust company, as defined in subdivi-
A. 2767 4
1 sion seven of section one hundred-c of the banking law, acts as co-trus-
2 tee.
3 (D) The department of health shall promulgate such regulations as may
4 be necessary to carry out the provisions of this subparagraph. Such
5 regulations shall include provisions for: assuring the fulfillment of
6 fiduciary obligations of the trustee with respect to the remainder
7 interest of the department of health or state; monitoring pooled trusts;
8 applying this subdivision to legal instruments and other devices similar
9 to trusts, in accordance with applicable federal rules and regulations;
10 and establishing procedures under which the application of this subdivi-
11 sion will be waived with respect to an applicant or recipient who demon-
12 strates that such application would work an undue hardship on him or
13 her, in accordance with standards specified by the secretary of the
14 federal department of health and human services. Such regulations may
15 require notification of the department of the creation or funding of
16 such a trust for the benefit of an applicant for or recipient of medical
17 assistance; notification of the department of health of the death of a
18 beneficiary of such a trust who is a current or former recipient of
19 medical assistance; in the case of a trust, the corpus of which exceeds
20 one hundred thousand dollars, notification of the department of health
21 of transactions tending to substantially deplete the trust corpus;
22 notification of the department of health of any transactions involving
23 transfers from the trust corpus for less than fair market value; the
24 bonding of the trustee when the assets of such a trust equal or exceed
25 one million dollars, unless a court of competent jurisdiction waives
26 such requirement; and the bonding of the trustee when the assets of such
27 a trust are less than one million dollars, upon order of a court of
28 competent jurisdiction. The department of health, together with the
29 banking department, shall promulgate regulations governing the estab-
30 lishment, management and monitoring of trust established pursuant to
31 subclause (II) of clause (C) of this subparagraph in which a not-for-
32 profit corporation and a trust company serve as co-trustees.
33 (E) Notwithstanding any acts, omissions or failures to act of a trus-
34 tee of a trust which the department of health or a local social services
35 official has determined complies with the provisions of clause (C) and
36 the regulations authorized by clause (D) of this subparagraph, the
37 department must not consider the corpus or income of any such trust as
38 available resources of the applicant or recipient who is disabled, as
39 such term is defined in section 1614(a)(3) of the federal social securi-
40 ty act. The department of health's remedy for redress of any acts, omis-
41 sions or failures to act by such a trustee whose acts, omissions or
42 failures are considered by the department of health to be inconsistent
43 with the terms of the trust, contrary to applicable laws and regulations
44 of the department of health, or contrary to the fiduciary obligations of
45 the trustee shall be the commencement of an action or proceeding under
46 subdivision one of section sixty-three of the executive law to safeguard
47 or enforce the state's remainder interest in the trust, or such other
48 action or proceeding as may be lawful and appropriate as to assure
49 compliance by the trustee or to safeguard and enforce the state's
50 remainder interest in the trust.
51 2-d. Resource eligibility requirements. (a) In determining the initial
52 or continuing eligibility of any person for assistance under this
53 section, there shall be included in the amount of resources considered
54 available to such person the uncompensated value of any resource trans-
55 ferred, and such person shall be ineligible for such assistance for such
56 period or periods as specified in this subdivision.
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1 (b) (i) A nonexempt resource shall mean any resource which if retained
2 by such person would not be exempt from consideration under the
3 provisions of subdivision two-c of this section;
4 (ii) Any transfer of a nonexempt resource made within twenty-four
5 months prior to the date of a person's application for medical assist-
6 ance shall be presumed to have been made for the purpose of qualifying
7 for such assistance; however, if such person furnishes evidence to
8 establish that the transfer was exclusively for some other purpose, the
9 uncompensated value shall not be considered available to such person in
10 determining his or her initial or continued eligibility for medical
11 assistance;
12 (iii) The uncompensated value of any such resource shall be the fair
13 market value of such resource at the time of transfer, minus the amount
14 of the compensation received by the person in exchange for the resource;
15 (iv) Excess resources shall be the total of a person's nonexempt
16 resources above twenty thousand dollars;
17 (v) Any person determined to have resources in excess of twenty thou-
18 sand dollars shall be ineligible for assistance under this section
19 pursuant to subparagraphs (vi) and (vii) of this paragraph;
20 (vi) Any person determined to have excess resources of fifteen thou-
21 sand dollars or less because of the application of this paragraph shall
22 remain ineligible for assistance under this title for a period of twen-
23 ty-four months from the date of the transfer, or until such person can
24 demonstrate that he or she has incurred medical expenses after the date
25 of transfer in the amount of such excess above otherwise allowable
26 resources, whichever period is shorter;
27 (vii) Any person determined to have excess resources of more than
28 fifteen thousand dollars because of the application of this paragraph
29 shall remain ineligible for assistance under this section for a period
30 which exceeds twenty-four months, which period shall be determined by
31 adding an additional month of ineligibility for each two thousand
32 dollars in excess of fifteen thousand dollars, or until such person can
33 demonstrate that he or she has incurred medical expenses after the date
34 of transfer in the amount of such excess above otherwise allowable
35 resources, whichever period is shorter.
36 (c) Any transfer of a resource by a person or such person's spouse for
37 less than fair market value made within or after the thirty months imme-
38 diately preceding the date of application for medical assistance under
39 this section, shall render the person ineligible for health care
40 services for a period of twenty-four months from the date of transfer,
41 which period shall be determined by adding an additional month of inel-
42 igibility for each two thousand dollars in excess of fifteen thousand
43 dollars, or until such person can demonstrate that he or she has
44 incurred medical expenses after the date of transfer in the amount of
45 such excess above allowable resources, whichever period is shorter;
46 however, a person shall not be ineligible for health care services sole-
47 ly by reason of any such transfer to the extent that:
48 (i) the resource transferred was a home and title to the home was
49 transferred to:
50 (A) the spouse of such person; or
51 (B) a child of such person who is under the age of twenty-one years or
52 certified blind or certified permanently and totally disabled, as
53 defined by section two hundred eight of this article; or
54 (C) a sibling of such person who has an equity interest in such home
55 and who resided in such home for a period of at least one year imme-
A. 2767 6
1 diately before the date the person applied for medical assistance pursu-
2 ant to this section; or
3 (D) a son or daughter of such person who was residing in such home for
4 a period of at least two years immediately before the date such person
5 applied for medical assistance pursuant to this section, and who
6 provided care to such person which permitted such person to reside at
7 home rather than in an institution or facility; or
8 (ii) the resource was transferred to or for the sole benefit of such
9 person's spouse, or from such person's spouse to or for the sole benefit
10 of such person, or to his or her child who is certified blind or certi-
11 fied permanently and totally disabled; or
12 (iii) a satisfactory showing is made that:
13 (A) the person or such person's spouse intended to dispose of the
14 resource either at fair market value, or for other valuable consider-
15 ation, or
16 (B) the resource was transferred exclusively for a purpose other than
17 to qualify for medical assistance; or
18 (iv) denial of eligibility would work an undue hardship, as defined by
19 the commissioner which definition shall include the inability of the
20 person or such person's spouse to retrieve the resource or to obtain
21 fair market value therefor despite his or her best efforts.
22 (d) The commissioner shall promulgate such rules and regulations as
23 may be necessary to carry out the provisions of this subdivision.
24 § 5. This act shall take effect on the ninetieth day after it shall
25 have become a law; provided however that section one of this act shall
26 remain in effect until the approval of the commissioner of health pursu-
27 ant to subdivision 4 of section 79 of part C of chapter 58 of the laws
28 of 2005, when upon such date the provisions of section two of this act
29 shall take effect; and provided further that the commissioner of health
30 is authorized to promulgate any and all rules and regulations and take
31 any other measures necessary to implement this act on its effective date
32 on or before such date.
