S T A T E O F N E W Y O R K
________________________________________________________________________
6658
2009-2010 Regular Sessions
I N A S S E M B L Y
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
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:
Section 1. Subdivisions 1 and 2 of section 364-i of the social
services law, as amended by chapter 693 of the laws of 1996, are amended
to read as follows:
1. An individual, upon application for medical assistance, shall be
presumed eligible for such assistance for a period of sixty days from
the date of transfer from a general hospital, as defined in section
twenty-eight hundred one of the public health law to a certified home
health agency [or long term home health care program], as defined in
section thirty-six hundred two of the public health law, or to a hospice
as defined in section four thousand two of the public health law, or to
a residential health care facility as defined in section twenty-eight
hundred one of the public health law, if the local department of social
services determines that the applicant meets each of the following
criteria: (a) the applicant is receiving acute care in such hospital;
(b) a physician certifies that such applicant no longer requires acute
hospital care, but still requires medical care which can be provided by
a certified home health agency, [long term home health care program,]
hospice or residential health care facility; (c) the applicant or his OR
HER representative states that the applicant does not have insurance
coverage for the required medical care and that such care cannot be
afforded; (d) it reasonably appears that the applicant is otherwise
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06787-01-9
A. 6658 2
eligible to receive medical assistance; (e) it reasonably appears that
the amount expended by the state and the local social services district
for medical assistance in a certified home health agency, [long term
home health care program,] hospice or residential health care facility,
during the period of presumed eligibility, would be less than the amount
the state and the local social services district would expend for
continued acute hospital care for such person; and (f) such other deter-
minative criteria as the commissioner shall provide by rule or regu-
lation. If a person has been determined to be presumptively eligible for
medical assistance, pursuant to this subdivision, and is subsequently
determined to be ineligible for such assistance, the commissioner, on
behalf of the state and the local social services district shall have
the authority to recoup from the individual the sums expended for such
assistance during the period of presumed eligibility.
2. Payment for up to sixty days of care for services provided under
the medical assistance program shall be made for an applicant presumed
eligible for medical assistance pursuant to subdivision one of this
section provided, however, that such payment shall not exceed sixty-five
percent of the rate payable under this title for services provided by a
certified home health agency, [long term home health care program,]
hospice or residential health care facility. Notwithstanding any other
provision of law, no federal financial participation shall be claimed
for services provided to a person while presumed eligible for medical
assistance under this program until such person has been determined to
be eligible for medical assistance by the local social services
district. During the period of presumed medical assistance eligibility,
payment for services provided persons presumed eligible under this
program shall be made from state funds. Upon the final determination of
eligibility by the local social services district, payment shall be made
for the balance of the cost of such care and services provided to such
applicant for such period of eligibility and a retroactive adjustment
shall be made by the department to appropriately reflect federal finan-
cial participation and the local share of costs for the services
provided during the period of presumptive eligibility. Such federal and
local financial participation shall be the same as that which would have
occurred if a final determination of eligibility for medical assistance
had been made prior to the provision of the services provided during the
period of presumptive eligibility. In instances where an individual who
is presumed eligible for medical assistance is subsequently determined
to be ineligible, the cost for services provided to such individual
shall be reimbursed in accordance with the provisions of section three
hundred sixty-eight-a of this [article] TITLE. Provided, however, if
upon audit the department determines that there are subsequent determi-
nations of ineligibility for medical assistance in at least fifteen
percent of the cases in which presumptive eligibility has been granted
in a local social services district, payments for services provided to
all persons presumed eligible and subsequently determined ineligible for
medical assistance shall be divided equally by the state and the
district.
S 2. Subdivisions 1 and 2 of section 364-i of the social services law,
as added by chapter 626 of the laws of 1987, are amended to read as
follows:
1. An individual, upon application for medical assistance, shall be
presumed eligible for such assistance for a period of sixty days from
the date of transfer from a general hospital, as defined in section
twenty-eight hundred one of the public health law to a certified home
A. 6658 3
health agency [or long term home health care program], as defined in
section thirty-six hundred two of the public health law, if the local
department of social services determines that the applicant meets each
of the following criteria: (a) the applicant is receiving acute care in
such hospital; (b) a physician certifies that such applicant no longer
requires acute hospital care, but still requires medical care which can
be provided by a certified home health agency [or a long term home
health care program]; (c) the applicant or his OR HER representative
states that the applicant does not have insurance coverage for the
required medical care and that such care cannot be afforded; (d) it
reasonably appears that the applicant is otherwise eligible to receive
medical assistance; (e) it reasonably appears that the amount expended
by the state and the local social services district for medical assist-
ance in a certified home health agency [or long term home health care
program], during the period of presumed eligibility, would be less than
the amount the state and the local social services district would expend
for continued acute hospital care for such person; and (f) such other
determinative criteria as the commissioner shall provide by rule or
regulation. If a person has been determined to be presumptively eligible
for medical assistance, pursuant to this subdivision, and is subsequent-
ly determined to be ineligible for such assistance, the commissioner, on
behalf of the state and the local social services district shall have
the authority to recoup from the individual the sums expended for such
assistance during the period of presumed eligibility.
2. Payment for up to sixty days of care for services provided under
the medical assistance program shall be made for an applicant presumed
eligible for medical assistance pursuant to subdivision one of this
section provided, however, that such payment shall not exceed sixty-five
percent of the rate payable under this title for services provided by a
certified home health agency [or a long term home health care program].
Notwithstanding any other provision of law, no federal financial partic-
ipation shall be claimed for services provided to a person while
presumed eligible for medical assistance under this program until such
person has been determined to be eligible for medical assistance by the
local social services district. During the period of presumed medical
assistance eligibility, payment for services provided persons presumed
eligible under this program shall be made from state funds. Upon the
final determination of eligibility by the local social services
district, payment shall be made for the balance of the cost of such care
and services provided to such applicant for such period of eligibility
and a retroactive adjustment shall be made by the department to appro-
priately reflect federal financial participation and the local share of
costs for the services provided during the period of presumptive eligi-
bility. Such federal and local financial participation shall be the same
as that which would have occurred if a final determination of eligibil-
ity for medical assistance had been made prior to the provision of the
services provided during the period of presumptive eligibility. In
instances where an individual who is presumed eligible for medical
assistance is subsequently determined to be ineligible, the cost for
services provided to such individual shall be reimbursed in accordance
with the provisions of section three hundred sixty-eight-a of this
[article] TITLE. Provided, however, if upon audit the department deter-
mines that there are subsequent determinations of ineligibility for
medical assistance in at least fifteen percent of the cases in which
presumptive eligibility has been granted in a local social services
district, payments for services provided to all persons presumed eligi-
A. 6658 4
ble and subsequently determined ineligible for medical assistance shall
be divided equally by the state and the district.
S 3. Paragraph (d) of subdivision 2 of section 365-f of the social
services law, as added by chapter 81 of the laws of 1995, is amended to
read as follows:
(d) meets such other criteria, as may be established by the commis-
sioner, which are necessary to effectively implement the objectives of
this section. SUCH CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED TO, A
REQUIREMENT THAT ANY PERSON WHO IS ELIGIBLE FOR, OR REASONABLY APPEARS
TO MEET THE CRITERIA OF ELIGIBILITY FOR, BENEFITS UNDER SUBCHAPTER XVIII
OF THE FEDERAL SOCIAL SECURITY ACT SHALL BE REQUIRED TO APPLY FOR AND
FULLY UTILIZE SUCH BENEFITS IN ACCORDANCE WITH THIS CHAPTER TO DEFRAY
THE COSTS OF THE PROGRAM. IF SUCH PERSON APPLIES FOR SUCH BENEFITS UNDER
SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH PERSON'S
APPLICATION THEREFOR IS DENIED, SUCH PERSON MUST APPEAL SUCH DENIAL OR
PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR HER BEHALF.
IF SUCH PERSON RECEIVES SUCH BENEFITS UNDER SUBCHAPTER XVIII OF THE
FEDERAL SOCIAL SECURITY ACT AND SUCH PERSON'S CONTINUING RECEIPT THEREOF
IS TERMINATED, SUCH PERSON MUST APPEAL SUCH TERMINATION OR PERMIT THE
LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR HER BEHALF.
S 4. Subparagraph 1 of paragraph (b) of subdivision 2 of section 366
of the social services law, as amended by chapter 638 of the laws of
1993 and designated by chapter 170 of the laws of 1994, is amended to
read as follows:
(1) In establishing standards for determining eligibility for and
amount of such assistance, the department shall take into account only
such income and resources, in accordance with federal requirements, as
are available to the applicant or recipient and as would not be required
to be disregarded or set aside for future needs, and there shall be a
reasonable evaluation of any such income or resources. The department
shall not consider the availability of an option for an accelerated
payment of death benefits or special surrender value pursuant to para-
graph one of subsection (a) of section one thousand one hundred thirteen
of the insurance law, or an option to enter into a viatical settlement
pursuant to the provisions of article seventy-eight of the insurance
law, as an available resource in determining eligibility for an amount
of such assistance, provided, however, that the payment of such benefits
shall be considered in determining eligibility for and amount of such
assistance. There shall not be taken into consideration the financial
responsibility of any individual for any applicant or recipient of
assistance under this title unless such applicant or recipient is such
individual's spouse or such individual's child who is under twenty-one
years of age. In determining the eligibility of a child who is categori-
cally eligible as blind or disabled, as determined under regulations
prescribed by the social security act for medical assistance, the income
and resources of parents or spouses of parents are not considered avail-
able to that child if [she/he] HE OR SHE does not regularly share the
common household even if the child returns to the common household for
periodic visits. In the application of standards of eligibility with
respect to income, costs incurred for medical care, whether in the form
of insurance premiums or otherwise, shall be taken into account. Any
person who is eligible for, or reasonably appears to meet the criteria
of eligibility for, benefits under [title] SUBCHAPTER XVIII of the
federal social security act shall be required to apply for and fully
utilize such benefits in accordance with this chapter. IN THE CASE OF A
PERSON WHO IS RECEIVING OR SEEKING LONG TERM CARE, BENEFITS UNDER
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SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT SHALL BE FULLY
UTILIZED IN ACCORDANCE WITH THIS CHAPTER TO DEFRAY THE COSTS OF SUCH
LONG TERM CARE. IF SUCH PERSON APPLIES FOR SUCH BENEFITS UNDER SUBCHAP-
TER XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH PERSON'S APPLICA-
TION THEREFOR IS DENIED, SUCH PERSON MUST APPEAL SUCH DENIAL OR PERMIT
THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR HER BEHALF. IF
SUCH PERSON RECEIVES SUCH BENEFITS UNDER SUBCHAPTER XVIII OF THE FEDERAL
SOCIAL SECURITY ACT AND SUCH PERSON'S CONTINUING RECEIPT THEREOF IS
TERMINATED, SUCH PERSON MUST APPEAL SUCH TERMINATION OR PERMIT THE LOCAL
SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR HER BEHALF.
S 5. Subparagraph (v) of paragraph b of subdivision 6-a of section 366
of the social services law, as amended by chapter 627 of the laws of
2004, is amended to read as follows:
(v) meet such other criteria as may be established by the commissioner
of health as may be necessary to administer the provision of this subdi-
vision in an equitable manner. SUCH CRITERIA SHALL INCLUDE, BUT NOT BE
LIMITED TO, A REQUIREMENT THAT ANY PERSON WHO IS ELIGIBLE FOR, OR
REASONABLY APPEARS TO MEET THE CRITERIA OF ELIGIBILITY FOR, BENEFITS
UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT SHALL BE
REQUIRED TO APPLY FOR AND FULLY UTILIZE SUCH BENEFITS IN ACCORDANCE WITH
THIS CHAPTER TO DEFRAY THE COSTS OF THE PROGRAM. IF SUCH PERSON APPLIES
FOR SUCH BENEFITS UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY
ACT AND SUCH PERSON'S APPLICATION THEREFOR IS DENIED, SUCH PERSON MUST
APPEAL SUCH DENIAL OR PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO
ON HIS OR HER BEHALF. IF SUCH PERSON RECEIVES SUCH BENEFITS UNDER
SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH PERSON'S
CONTINUING RECEIPT THEREOF IS TERMINATED, SUCH PERSON MUST APPEAL SUCH
TERMINATION OR PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS
OR HER BEHALF.
S 6. Subparagraph (viii) of paragraph b of subdivision 9 of section
366 of the social services law, as added by chapter 170 of the laws of
1994, is amended to read as follows:
(viii) meet such other criteria as may be established by the commis-
sioner of mental health, in conjunction with the commissioner, as may be
necessary to administer the provisions of this subdivision in an equita-
ble manner, including those criteria established pursuant to paragraph e
of this subdivision. SUCH CRITERIA SHALL INCLUDE, BUT NOT BE LIMITED TO,
A REQUIREMENT THAT ANY PERSON WHO IS ELIGIBLE FOR, OR REASONABLY APPEARS
TO MEET THE CRITERIA OF ELIGIBILITY FOR, BENEFITS UNDER SUBCHAPTER XVIII
OF THE FEDERAL SOCIAL SECURITY ACT SHALL BE REQUIRED TO APPLY FOR AND
FULLY UTILIZE SUCH BENEFITS IN ACCORDANCE WITH THIS CHAPTER TO DEFRAY
THE COSTS OF THE PROGRAM. IF SUCH PERSON APPLIES FOR SUCH BENEFITS UNDER
SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH PERSON'S
APPLICATION THEREFOR IS DENIED, SUCH PERSON MUST APPEAL SUCH DENIAL OR
PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR HER BEHALF.
IF SUCH PERSON RECEIVES SUCH BENEFITS UNDER SUBCHAPTER XVIII OF THE
FEDERAL SOCIAL SECURITY ACT AND SUCH PERSON'S CONTINUING RECEIPT THEREOF
IS TERMINATED, SUCH PERSON MUST APPEAL SUCH TERMINATION OR PERMIT THE
LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR HER BEHALF.
S 7. The social services law is amended by adding a new section 366-i
to read as follows:
S 366-I. LONG TERM CARE; OTHER CASES. IN ALL CASES NOT OTHERWISE
PROVIDED FOR IN THIS TITLE OF A PERSON WHO IS RECEIVING OR SEEKING LONG
TERM CARE, BENEFITS UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURI-
TY ACT SHALL BE FULLY UTILIZED IN ACCORDANCE WITH THIS CHAPTER TO DEFRAY
THE COSTS OF SUCH LONG TERM CARE. IF SUCH PERSON APPLIES FOR SUCH BENE-
A. 6658 6
FITS UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH
PERSON'S APPLICATION THEREFOR IS DENIED, SUCH PERSON MUST APPEAL SUCH
DENIAL OR PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR
HER BEHALF. IF SUCH PERSON RECEIVES SUCH BENEFITS UNDER SUBCHAPTER
XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH PERSON'S CONTINUING
RECEIPT THEREOF IS TERMINATED, SUCH PERSON MUST APPEAL SUCH TERMINATION
OR PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR HER
BEHALF.
S 8. Subdivision 3 of section 367-a of the social services law is
amended by adding a new paragraph (e) to read as follows:
(E) NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SECTION OR OF
ANY OTHER LAW, FOR ANY PERSON WHO IS ELIGIBLE FOR MEDICAL ASSISTANCE AND
FOR MEDICARE UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT,
THE COST OF THE PREMIUM FOR MEDICARE PART A SHALL BE BORNE BY THE STATE.
S 9. Subdivision 7 of section 367-c of the social services law, as
added by chapter 895 of the laws of 1977 and renumbered by chapter 854
of the laws of 1987, is amended to read as follows:
7. No social services district shall make payments pursuant to [title]
SUBCHAPTER XIX of the federal Social Security Act for benefits available
under [title] SUBCHAPTER XVIII of such act without documentation that
[title] SUBCHAPTER XVIII claims have been filed and denied. UPON SUCH
DENIAL, SUCH PERSON MUST APPEAL SUCH DENIAL OR PERMIT THE LOCAL SOCIAL
SERVICES OFFICIAL TO DO SO ON HIS OR HER BEHALF. IF SUCH PERSON RECEIVES
SUCH BENEFITS UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT
AND SUCH PERSON'S CONTINUING RECEIPT THEREOF IS TERMINATED, SUCH PERSON
MUST APPEAL SUCH TERMINATION OR PERMIT THE LOCAL SOCIAL SERVICES OFFI-
CIAL TO DO SO ON HIS OR HER BEHALF.
S 10. Subdivision 3 of section 367-e of the social services law, as
added by chapter 622 of the laws of 1988, is amended to read as follows:
3. The commissioner shall apply for any waivers, including home and
community based services waivers pursuant to section nineteen hundred
fifteen-c of the social security act, necessary to implement AIDS home
care programs. Notwithstanding any inconsistent provision of law but
subject to expenditure limitations of this section, the commissioner,
subject to the approval of the state director of the budget, may author-
ize the utilization of medical assistance funds to pay for services
provided by AIDS home care programs in addition to those services
included in the medical assistance program under section three hundred
sixty-five-a of this [chapter] TITLE, so long as federal financial
participation is available for such services. Expenditures made under
this subdivision shall be deemed payments for medical assistance for
needy persons and shall be subject to reimbursement by the state in
accordance with the provisions of section three hundred sixty-eight-a of
this [chapter] TITLE. ANY PERSON WHO IS ELIGIBLE FOR, OR REASONABLY
APPEARS TO MEET THE CRITERIA OF ELIGIBILITY FOR, BENEFITS UNDER SUBCHAP-
TER XVIII OF THE FEDERAL SOCIAL SECURITY ACT SHALL BE REQUIRED TO APPLY
FOR AND FULLY UTILIZE SUCH BENEFITS IN ACCORDANCE WITH THIS CHAPTER TO
DEFRAY THE COSTS OF THE PROGRAM. IF SUCH PERSON APPLIES FOR SUCH BENE-
FITS UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH
PERSON'S APPLICATION THEREFOR IS DENIED, SUCH PERSON MUST APPEAL SUCH
DENIAL OR PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR
HER BEHALF. IF SUCH PERSON RECEIVES SUCH BENEFITS UNDER SUBCHAPTER
XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH PERSON'S CONTINUING
RECEIPT THEREOF IS TERMINATED, SUCH PERSON MUST APPEAL SUCH TERMINATION
OR PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO DO SO ON HIS OR HER
BEHALF.
A. 6658 7
S 11. Subdivision 2 of section 367-f of the social services law, as
added by chapter 659 of the laws of 1997, is amended to read as follows:
2. Notwithstanding any inconsistent provision of this chapter or any
other law to the contrary, the partnership for long term care program
shall provide Medicaid extended coverage to a person receiving long term
care services if there is federal participation pursuant to such treat-
ment and such person: (a) is or was covered by an insurance policy or
certificate providing coverage for long term care which meets the appli-
cable minimum benefit standards of the superintendent of insurance and
other requirements for approval of participation under the program; and,
(b) has exhausted the coverage and benefits as required by the program.
ANY SUCH PERSON WHO IS RECEIVING MEDICAL ASSISTANCE AND WHO IS ELIGIBLE
FOR, OR REASONABLY APPEARS TO MEET THE CRITERIA OF ELIGIBILITY FOR,
BENEFITS UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT SHALL
BE REQUIRED TO APPLY FOR AND FULLY UTILIZE SUCH BENEFITS IN ACCORDANCE
WITH THIS CHAPTER TO DEFRAY THE COSTS OF THE PROGRAM. IF SUCH PERSON
APPLIES FOR SUCH BENEFITS UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL
SECURITY ACT AND SUCH PERSON'S APPLICATION THEREFOR IS DENIED, SUCH
PERSON MUST APPEAL SUCH DENIAL OR PERMIT THE LOCAL SOCIAL SERVICES OFFI-
CIAL TO DO SO ON HIS OR HER BEHALF. IF SUCH PERSON RECEIVES SUCH BENE-
FITS UNDER SUBCHAPTER XVIII OF THE FEDERAL SOCIAL SECURITY ACT AND SUCH
PERSON'S CONTINUING RECEIPT THEREOF IS TERMINATED, SUCH PERSON MUST
APPEAL SUCH TERMINATION OR PERMIT THE LOCAL SOCIAL SERVICES OFFICIAL TO
DO SO ON HIS OR HER BEHALF.
S 12. This act shall take effect on the one hundred twentieth day
after it shall have become a law; provided that the commissioner of
health 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; and provided further that the amendments to
subdivisions 1 and 2 of section 364-i of the social services law made by
section one of this act shall be subject to the expiration and reversion
of such section pursuant to section 2 of chapter 693 of the laws of
1996, as amended, when upon such date the provisions of section two of
this act shall take effect.