Expands the asset transfer look-back period, disallows certain asset shelters, eliminates spousal refusal, caps spousal impoverishment asset allowances, and eliminates the shielding of additional assets with respect to medicaid eligibility.
STATE OF NEW YORK
________________________________________________________________________
6679
2009-2010 Regular Sessions
IN ASSEMBLY
March 11, 2009
___________
Introduced by M. of A. SCHIMMINGER, DelMONTE -- Multi-Sponsored by -- M.
of A. HOOPER, MAGEE, N. RIVERA -- read once and referred to the
Committee on Health
AN ACT to amend the social services law, in relation to expanding the
asset transfer look-back period, disallowing certain asset shelters,
eliminating spousal refusal, capping spousal impoverishment asset
allowances, and eliminating the shielding of additional assets
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (a) of subdivision 3 of section 366 of the social
2 services law, as amended by chapter 110 of the laws of 1971, is amended
3 to read as follows:
4 (a) Medical assistance shall be furnished to applicants in cases
5 where, although such applicant has a responsible relative with suffi-
6 cient income and resources to provide medical assistance as determined
7 by the regulations of the department, the income and resources of the
8 responsible relative are not available to such applicant because of the
9 absence of such relative [or] and the refusal or failure of such absent
10 relative to provide the necessary care and assistance. In such cases,
11 however, the furnishing of such assistance shall create an implied
12 contract with such relative, and the cost thereof may be recovered from
13 such relative in accordance with title six of article three of this
14 chapter and other applicable provisions of law.
15 § 2. Paragraph (d) of subdivision 5 of section 366 of the social
16 services law, as added by chapter 170 of the laws of 1994, is amended to
17 read as follows:
18 (d) For transfers made after August tenth, nineteen hundred ninety-
19 three:
20 (1) (i) "assets" means all income and resources of an individual and
21 of the individual's spouse, including income or resources to which the
22 individual or the individual's spouse is entitled but which are not
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06828-01-9
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1 received because of action by: the individual or the individual's
2 spouse; a person with legal authority to act in place of or on behalf of
3 the individual or the individual's spouse; a person acting at the direc-
4 tion or upon the request of the individual or the individual's spouse;
5 or by a court or administrative body with legal authority to act in
6 place of or on behalf of the individual or the individual's spouse or at
7 the direction or upon the request of the individual or the individual's
8 spouse.
9 (ii) "blind" has the same meaning given to such term in section
10 1614(a)(2) of the federal social [social] security act.
11 (iii) "disabled" has the same meaning given to such term in section
12 1614(a)(3) of the federal social security act.
13 (iv) "income" has the same meaning given to such term in section 1612
14 of the federal social security act.
15 (v) "resources" has the same meaning given to such term in section
16 1613 of the federal social security act, without regard, in the case of
17 an institutionalized individual, to the exclusion provided for in
18 subsection (a)(1) of such section.
19 (vi) "look-back period" means the thirty-six month period, or, in the
20 case of payments from a trust or portions of a trust which are treated
21 as assets disposed of by the individual pursuant to department regu-
22 lations, the sixty-month period, immediately preceding the date that an
23 institutionalized individual is both institutionalized and has applied
24 for medical assistance, or in the case of a non-institutionalized indi-
25 vidual, the date that such non-institutionalized individual applies for
26 medical assistance coverage of long term care services; provided, howev-
27 er, that the look-back period for all types of transfers shall be sixty
28 months if the commissioner of health obtains all necessary approvals
29 under federal law and regulation to implement such a look-back period;
30 provided further that the use of a sixty-month look-back period for all
31 types of transfers shall continue only if and for so long as the use of
32 such a look-back period does not prevent the receipt of federal finan-
33 cial participation under the medical assistance program; provided
34 further that the commissioner of health shall submit such waiver appli-
35 cations and/or state plan amendments as may be necessary to obtain
36 approval to implement a sixty-month look-back period for all types of
37 transfers and to ensure continued federal financial participation.
38 (vii) "institutionalized individual" means any individual who is an
39 in-patient in a nursing facility, including an intermediate care facili-
40 ty for the mentally retarded, or who is an in-patient in a medical
41 facility and is receiving a level of care provided in a nursing facili-
42 ty, or who is receiving care, services or supplies pursuant to a waiver
43 granted pursuant to subsection (c) of section 1915 of the federal social
44 security act.
45 (viii) "intermediate care facility for the mentally retarded" means a
46 facility certified under article sixteen of the mental hygiene law and
47 which has a valid agreement with the department for providing intermedi-
48 ate care facility services and receiving payment therefor under title
49 XIX of the federal social security act.
50 (ix) "nursing facility" means a nursing home as defined by section
51 twenty-eight hundred one of the public health law and an intermediate
52 care facility for the mentally retarded.
53 (x) "nursing facility services" means nursing care and health related
54 services provided in a nursing facility; a level of care provided in a
55 hospital which is equivalent to the care which is provided in a nursing
56 facility; and care, services or supplies provided pursuant to a waiver
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1 granted pursuant to subsection (c) of section 1915 of the federal social
2 security act.
3 (xi) "non-institutionalized individual" means an individual who is not
4 an institutionalized individual, as defined in clause (vii) of this
5 subparagraph.
6 (xii) "long term care services" means home health care services,
7 personal care services, assisted living program services and such other
8 services for which medical assistance is otherwise available under this
9 chapter which are designated as long term care services in the regu-
10 lations of the department.
11 (2) The uncompensated value of an asset is the fair market value of
12 such asset at the time of transfer, minus the amount of the compensation
13 received in exchange for the asset.
14 (3) In determining the medical assistance eligibility of an institu-
15 tionalized individual, any transfer of an asset by the individual or the
16 individual's spouse for less than fair market value made within or after
17 the look-back period shall render the individual ineligible for nursing
18 facility services for the period of time specified in subparagraph four
19 of this paragraph. In determining the medical assistance eligibility of
20 a non-institutionalized individual, any transfer of an asset by the
21 individual or the individual's spouse for less than fair market value
22 made within or after the look-back period shall render the individual
23 ineligible for long term care services for the period of time specified
24 in subparagraph four of this paragraph. Notwithstanding the provisions
25 of this subparagraph, an individual shall not be ineligible for services
26 solely by reason of any such transfer to the extent that:
27 (i) [in the case of an institutionalized individual,] the asset trans-
28 ferred was a home and title to the home [as] was transferred to: (A) the
29 spouse of the individual; or (B) a child of the individual who is under
30 the age of twenty-one years or blind or disabled; or (C) in the case of
31 an institutionalized individual, a sibling of the individual who has an
32 equity interest in such home and who resided in such home for a period
33 of at least one year immediately before the date the individual became
34 an institutionalized individual; or (D) in the case of an institutional-
35 ized individual, a child of the individual who was residing in such home
36 for a period of at least two years immediately before the date the indi-
37 vidual became an institutionalized individual, and who provided care to
38 the individual which permitted the individual to reside at home rather
39 than in an institution or facility; or
40 (ii) the assets: (A) were transferred to the individual's spouse, or
41 to another for the sole benefit of the individual's spouse; or (B) were
42 transferred from the individual's spouse to another for the sole benefit
43 of the individual's spouse; or (C) were transferred to the individual's
44 child who is blind or disabled, or to a trust established solely for the
45 benefit of such child; or (D) were transferred to a trust established
46 solely for the benefit of an individual under sixty-five years of age
47 who is disabled; or
48 (iii) a satisfactory showing is made that: (A) the individual or the
49 individual's spouse intended to dispose of the assets either at fair
50 market value, or for other valuable consideration; or (B) the assets
51 were transferred exclusively for a purpose other than to qualify for
52 medical assistance; or (C) all assets transferred for less than fair
53 market value have been returned to the individual; or
54 (iv) denial of eligibility would cause an undue hardship, as deter-
55 mined pursuant to the regulations of the department in accordance with
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1 criteria established by the secretary of the federal department of
2 health and human services.
3 (4) (i) Any transfer made by an individual or the individual's spouse
4 under subparagraph three of this paragraph shall cause the person to be
5 ineligible for services for a period equal to the total, cumulative
6 uncompensated value of all assets transferred during or after the look-
7 back period, divided by the average monthly costs of nursing facility
8 services provided to a private patient for a given period of time at the
9 time of application, as determined pursuant to the regulations of the
10 department. The period of ineligibility shall begin with the first day
11 of the first month during or after which assets have been transferred
12 for less than fair market value, and which does not occur in any other
13 periods of ineligibility under this paragraph. For purposes of this
14 subparagraph, the average monthly costs of nursing facility services to
15 a private patient for a given period of time at the time of application
16 shall be presumed to be one hundred twenty percent of the average
17 medical assistance rate of payment as of the first day of January of
18 each year for nursing facilities within the region wherein the applicant
19 resides, as established pursuant to paragraph (b) of subdivision sixteen
20 of section twenty-eight hundred seven-c of the public health law.
21 (ii) Notwithstanding any provision of clause (i) of this subparagraph
22 to the contrary, the period of ineligibility described therein shall
23 begin on the first day the individual is receiving services for which
24 medical assistance coverage would be available but for the provisions of
25 subparagraph three of this paragraph, and which does not occur in any
26 other periods of ineligibility under this paragraph, if the commissioner
27 of health obtains all necessary approvals under federal law and regu-
28 lation to implement such a period of ineligibility. The use of such a
29 period of ineligibility shall continue only if and for so long as it
30 does not prevent the receipt of federal financial participation under
31 the medical assistance program. The commissioner of health shall submit
32 such waiver applications and/or state plan amendments as may be neces-
33 sary to obtain approval to implement the period of ineligibility
34 described in this clause and to ensure continued federal financial
35 participation.
36 (5) In the case of an asset held by an individual in common with
37 another person or persons in a joint tenancy, tenancy in common, or
38 similar arrangement, the asset, or the affected portion of the asset,
39 shall be considered to be transferred by such individual when any action
40 is taken, either by such individual or by any other person, that reduces
41 or eliminates such individual's ownership or control of such asset.
42 (6) In the case of a trust established by the individual, as deter-
43 mined pursuant to the regulations of the department, any payment, other
44 than a payment to or for the benefit of the individual, from a revocable
45 trust is considered to be a transfer of assets by the individual and any
46 payment, other than to or for the benefit of the individual, from the
47 portion of an irrevocable trust which, under any circumstance, could be
48 made available to the individual is considered to be a transfer of
49 assets by the individual and, further, the value of any portion of an
50 irrevocable trust from which no payment could be made to the individual
51 under any circumstances is considered to be a transfer of assets by the
52 individual for purposes of this section as of the date of establishment
53 of the trust, or, if later, the date on which payment to the individual
54 is foreclosed.
55 (7) In the case of a transfer by an individual which results in a
56 period of ineligibility for such individual or his or her spouse, such
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1 period of ineligibility will continue without regard to the individual's
2 becoming an institutionalized individual if the transfer was made while
3 the individual was a non-institutionalized individual and without regard
4 to the individual's becoming a non-institutionalized individual if the
5 transfer was made while the individual was an institutionalized individ-
6 ual. In no event shall the total period of ineligibility for long term
7 care services and nursing facility services resulting from the same
8 transfer of assets exceed the period calculated pursuant to subparagraph
9 four of this paragraph.
10 § 3. Clause (B) of subparagraph (i) of paragraph (d) of subdivision 2
11 of section 366-c of the social services law, as amended by chapter 433
12 of the laws of 1997, is amended to read as follows:
13 (B) on and after January first, nineteen hundred ninety-five through
14 June thirtieth, nineteen hundred ninety-nine, seventy-four thousand
15 eight hundred twenty dollars or such greater amount as may be required
16 under federal law; provided, however, that such amount shall not be
17 increased or adjusted to an amount in excess of the allowance permitted
18 under this paragraph on the effective date of the chapter of the laws of
19 two thousand nine that amended this clause;
20 § 4. Paragraph (b) of subdivision 5 of section 366-c of the social
21 services law, as added by chapter 558 of the laws of 1989, is amended to
22 read as follows:
23 (b) An institutionalized spouse shall not be ineligible for medical
24 assistance by reason of excess resources determined under paragraph (a)
25 of this subdivision, if (i) the institutionalized spouse executes an
26 assignment of support from the community spouse in favor of the social
27 services district and the department, or the institutionalized spouse is
28 unable to execute such assignment due to physical or mental impairment,
29 [or] and (ii) to deny assistance would create an undue hardship, as
30 defined by the commissioner.
31 § 5. Section four of this act shall not take effect unless and until
32 the commissioner of health receives all necessary approvals under feder-
33 al law and regulation to implement its provisions, and provided that
34 such provisions do not prevent the receipt of federal financial partic-
35 ipation under the medical assistance program. The commissioner of health
36 shall submit such waiver applications and/or state plan amendments as
37 may be necessary to obtain such approvals and to ensure continued feder-
38 al financial participation.
39 § 6. The commissioner of health is authorized to promulgate or adopt
40 any rules or regulations necessary to implement the provisions of this
41 act and any procedures, forms, or instructions necessary for such imple-
42 mentation may be adopted and issued on or after the effective date of
43 this act. Notwithstanding any inconsistent provision of the state admin-
44 istrative procedure act or any other provision of law, rule or regu-
45 lation, the commissioner of health is authorized to adopt or amend or
46 promulgate on an emergency basis any regulation he or she determines
47 necessary to implement any provision of this act on its effective date.
48 § 7. If any clause, sentence, paragraph, section or part of this act
49 shall be adjudged by any court of competent jurisdiction to be invalid,
50 such judgment shall not affect, impair or invalidate the remainder ther-
51 eof, but shall be confined in its operation to the clause, sentence,
52 paragraph, section or part thereof directly involved in the controversy
53 in which such judgment shall have been rendered.
54 § 8. This act shall take effect immediately and shall be deemed to
55 have been in full force and effect on and after April 1, 2009; provided
56 that sections one through five of this act shall take effect July 1,
A. 6679 6
1 2009; and provided further that the commissioner of health shall notify
2 the legislative bill drafting commission upon the occurrence of the
3 approvals required under section five of this act in order that the
4 commission may maintain an accurate and timely effective data base for
5 the official text of the laws of the state of New York in furtherance of
6 effecting the provisions of section 44 of the legislative law and
7 section 70-b of the public officers law.
