S T A T E   O F   N E W   Y O R K
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                                  6679

                       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,  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:

  Section 1. Paragraph (a) of subdivision 3 of section 366 of the social
services law, as amended by chapter 110 of the laws of 1971, is  amended
to read as follows:
  (a)  Medical  assistance  shall  be  furnished  to applicants in cases
where, although such applicant has a responsible  relative  with  suffi-
cient  income  and resources to provide medical assistance as determined
by the regulations of the department, the income and  resources  of  the
responsible  relative are not available to such applicant because of the
absence of such relative [or] AND the refusal or failure of such  ABSENT
relative  to  provide the necessary care and assistance.  In such cases,
however, the furnishing of  such  assistance  shall  create  an  implied
contract  with such relative, and the cost thereof may be recovered from
such relative in accordance with title six  of  article  three  OF  THIS
CHAPTER and other applicable provisions of law.
  S  2.  Paragraph  (d)  of  subdivision  5 of section 366 of the social
services law, as added by chapter 170 of the laws of 1994, is amended to
read as follows:
  (d) For transfers made after August tenth,  nineteen  hundred  ninety-
three:
  (1)  (i)  "assets" means all income and resources of an individual and
of the individual's spouse, including income or resources to  which  the
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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received because of  action  by:  the  individual  or  the  individual's
spouse; a person with legal authority to act in place of or on behalf of
the individual or the individual's spouse; a person acting at the direc-
tion  or  upon the request of the individual or the individual's spouse;
or by a court or administrative body with  legal  authority  to  act  in
place of or on behalf of the individual or the individual's spouse or at
the  direction or upon the request of the individual or the individual's
spouse.
  (ii) "blind" has the same  meaning  given  to  such  term  in  section
1614(a)(2) of the federal social [social] security act.
  (iii)  "disabled"  has  the same meaning given to such term in section
1614(a)(3) of the federal social security act.
  (iv) "income" has the same meaning given to such term in section  1612
of the federal social security act.
  (v)  "resources"  has  the  same meaning given to such term in section
1613 of the federal social security act, without regard, in the case  of
an  institutionalized  individual,  to  the  exclusion  provided  for in
subsection (a)(1) of such section.
  (vi) "look-back period" means the thirty-six month period, or, in  the
case  of  payments from a trust or portions of a trust which are treated
as assets disposed of by the individual  pursuant  to  department  regu-
lations,  the sixty-month period, immediately preceding the date that an
institutionalized individual is both institutionalized and  has  applied
for  medical assistance, OR IN THE CASE OF A NON-INSTITUTIONALIZED INDI-
VIDUAL, THE DATE THAT SUCH NON-INSTITUTIONALIZED INDIVIDUAL APPLIES  FOR
MEDICAL ASSISTANCE COVERAGE OF LONG TERM CARE SERVICES; PROVIDED, HOWEV-
ER,  THAT THE LOOK-BACK PERIOD FOR ALL TYPES OF TRANSFERS SHALL BE SIXTY
MONTHS IF THE COMMISSIONER OF HEALTH  OBTAINS  ALL  NECESSARY  APPROVALS
UNDER  FEDERAL  LAW AND REGULATION TO IMPLEMENT SUCH A LOOK-BACK PERIOD;
PROVIDED FURTHER THAT THE USE OF A SIXTY-MONTH LOOK-BACK PERIOD FOR  ALL
TYPES  OF TRANSFERS SHALL CONTINUE ONLY IF AND FOR SO LONG AS THE USE OF
SUCH A LOOK-BACK PERIOD DOES NOT PREVENT THE RECEIPT OF  FEDERAL  FINAN-
CIAL  PARTICIPATION  UNDER  THE  MEDICAL  ASSISTANCE  PROGRAM;  PROVIDED
FURTHER THAT THE COMMISSIONER OF HEALTH SHALL SUBMIT SUCH WAIVER  APPLI-
CATIONS  AND/OR  STATE  PLAN  AMENDMENTS  AS  MAY BE NECESSARY TO OBTAIN
APPROVAL TO IMPLEMENT A SIXTY-MONTH LOOK-BACK PERIOD FOR  ALL  TYPES  OF
TRANSFERS AND TO ENSURE CONTINUED FEDERAL FINANCIAL PARTICIPATION.
  (vii)  "institutionalized  individual"  means any individual who is an
in-patient in a nursing facility, including an intermediate care facili-
ty for the mentally retarded, or who  is  an  in-patient  in  a  medical
facility  and is receiving a level of care provided in a nursing facili-
ty, or who is receiving care, services or supplies pursuant to a  waiver
granted pursuant to subsection (c) of section 1915 of the federal social
security act.
  (viii)  "intermediate care facility for the mentally retarded" means a
facility certified under article sixteen of the mental hygiene  law  and
which has a valid agreement with the department for providing intermedi-
ate  care  facility  services and receiving payment therefor under title
XIX of the federal social security act.
  (ix) "nursing facility" means a nursing home  as  defined  by  section
twenty-eight  hundred  one  of the public health law and an intermediate
care facility for the mentally retarded.
  (x) "nursing facility services" means nursing care and health  related
services  provided  in a nursing facility; a level of care provided in a
hospital which is equivalent to the care which is provided in a  nursing
facility;  and  care, services or supplies provided pursuant to a waiver

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granted pursuant to subsection (c) of section 1915 of the federal social
security act.
  (XI) "NON-INSTITUTIONALIZED INDIVIDUAL" MEANS AN INDIVIDUAL WHO IS NOT
AN  INSTITUTIONALIZED  INDIVIDUAL,  AS  DEFINED  IN CLAUSE (VII) OF THIS
SUBPARAGRAPH.
  (XII) "LONG TERM CARE  SERVICES"  MEANS  HOME  HEALTH  CARE  SERVICES,
PERSONAL  CARE SERVICES, ASSISTED LIVING PROGRAM SERVICES AND SUCH OTHER
SERVICES FOR WHICH MEDICAL ASSISTANCE IS OTHERWISE AVAILABLE UNDER  THIS
CHAPTER  WHICH  ARE  DESIGNATED  AS LONG TERM CARE SERVICES IN THE REGU-
LATIONS OF THE DEPARTMENT.
  (2) The uncompensated value of an asset is the fair  market  value  of
such asset at the time of transfer, minus the amount of the compensation
received in exchange for the asset.
  (3)  In  determining the medical assistance eligibility of an institu-
tionalized individual, any transfer of an asset by the individual or the
individual's spouse for less than fair market value made within or after
the look-back period shall render the individual ineligible for  nursing
facility  services for the period of time specified in subparagraph four
of this paragraph. IN DETERMINING THE MEDICAL ASSISTANCE ELIGIBILITY  OF
A  NON-INSTITUTIONALIZED  INDIVIDUAL,  ANY  TRANSFER  OF AN ASSET BY THE
INDIVIDUAL OR THE INDIVIDUAL'S SPOUSE FOR LESS THAN  FAIR  MARKET  VALUE
MADE  WITHIN  OR  AFTER THE LOOK-BACK PERIOD SHALL RENDER THE INDIVIDUAL
INELIGIBLE FOR LONG TERM CARE SERVICES FOR THE PERIOD OF TIME  SPECIFIED
IN  SUBPARAGRAPH  FOUR OF THIS PARAGRAPH. Notwithstanding the provisions
of this subparagraph, an individual shall not be ineligible for services
solely by reason of any such transfer to the extent that:
  (i) [in the case of an institutionalized individual,] the asset trans-
ferred was a home and title to the home [as] WAS transferred to: (A) the
spouse of the individual; or (B) a child of the individual who is  under
the  age of twenty-one years or blind or disabled; or (C) IN THE CASE OF
AN INSTITUTIONALIZED INDIVIDUAL, a sibling of the individual who has  an
equity  interest  in such home and who resided in such home for a period
of at least one year immediately before the date the  individual  became
an institutionalized individual; or (D) IN THE CASE OF AN INSTITUTIONAL-
IZED INDIVIDUAL, a child of the individual who was residing in such home
for a period of at least two years immediately before the date the indi-
vidual  became an institutionalized individual, and who provided care to
the individual which permitted the individual to reside at  home  rather
than in an institution or facility; or
  (ii)  the  assets: (A) were transferred to the individual's spouse, or
to another for the sole benefit of the individual's spouse; or (B)  were
transferred from the individual's spouse to another for the sole benefit
of  the individual's spouse; or (C) were transferred to the individual's
child who is blind or disabled, or to a trust established solely for the
benefit of such child; or (D) were transferred to  a  trust  established
solely  for  the  benefit of an individual under sixty-five years of age
who is disabled; or
  (iii) a satisfactory showing is made that: (A) the individual  or  the
individual's  spouse  intended  to  dispose of the assets either at fair
market value, or for other valuable consideration;  or  (B)  the  assets
were  transferred  exclusively  for  a purpose other than to qualify for
medical assistance; or (C) all assets transferred  for  less  than  fair
market value have been returned to the individual; or
  (iv)  denial  of  eligibility would cause an undue hardship, as deter-
mined pursuant to the regulations of the department in  accordance  with

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criteria  established  by  the  secretary  of  the federal department of
health and human services.
  (4)  (I) Any transfer made by an individual or the individual's spouse
under subparagraph three of this paragraph shall cause the person to  be
ineligible  for  services  for  a  period equal to the total, cumulative
uncompensated value of all assets transferred during or after the  look-
back  period,  divided  by the average monthly costs of nursing facility
services provided to a private patient for a given period of time at the
time of application, as determined pursuant to the  regulations  of  the
department.  The  period of ineligibility shall begin with the first day
of the first month during or after which assets  have  been  transferred
for  less  than fair market value, and which does not occur in any other
periods of ineligibility under this  paragraph.  For  purposes  of  this
subparagraph,  the average monthly costs of nursing facility services to
a private patient for a given period of time at the time of  application
shall  be  presumed  to  be  one  hundred  twenty percent of the average
medical assistance rate of payment as of the first  day  of  January  of
each year for nursing facilities within the region wherein the applicant
resides, as established pursuant to paragraph (b) of subdivision sixteen
of section twenty-eight hundred seven-c of the public health law.
  (II)  NOTWITHSTANDING ANY PROVISION OF CLAUSE (I) OF THIS SUBPARAGRAPH
TO THE CONTRARY, THE PERIOD OF  INELIGIBILITY  DESCRIBED  THEREIN  SHALL
BEGIN  ON  THE FIRST DAY THE INDIVIDUAL  IS RECEIVING SERVICES FOR WHICH
MEDICAL ASSISTANCE COVERAGE WOULD BE AVAILABLE BUT FOR THE PROVISIONS OF
SUBPARAGRAPH THREE OF THIS PARAGRAPH, AND WHICH DOES NOT  OCCUR  IN  ANY
OTHER PERIODS OF INELIGIBILITY UNDER THIS PARAGRAPH, IF THE COMMISSIONER
OF  HEALTH  OBTAINS  ALL NECESSARY APPROVALS UNDER FEDERAL LAW AND REGU-
LATION TO IMPLEMENT SUCH A PERIOD OF INELIGIBILITY. THE USE  OF  SUCH  A
PERIOD  OF  INELIGIBILITY  SHALL  CONTINUE ONLY IF AND FOR SO LONG AS IT
DOES NOT PREVENT THE RECEIPT OF FEDERAL  FINANCIAL  PARTICIPATION  UNDER
THE  MEDICAL ASSISTANCE PROGRAM. THE COMMISSIONER OF HEALTH SHALL SUBMIT
SUCH WAIVER APPLICATIONS AND/OR STATE PLAN AMENDMENTS AS MAY  BE  NECES-
SARY  TO  OBTAIN  APPROVAL  TO  IMPLEMENT  THE  PERIOD  OF INELIGIBILITY
DESCRIBED IN THIS CLAUSE  AND  TO  ENSURE  CONTINUED  FEDERAL  FINANCIAL
PARTICIPATION.
  (5)  In  the  case  of  an  asset held by an individual in common with
another person or persons in a joint  tenancy,  tenancy  in  common,  or
similar  arrangement,  the  asset, or the affected portion of the asset,
shall be considered to be transferred by such individual when any action
is taken, either by such individual or by any other person, that reduces
or eliminates such individual's ownership or control of such asset.
  (6) In the case of a trust established by the  individual,  as  deter-
mined  pursuant to the regulations of the department, any payment, other
than a payment to or for the benefit of the individual, from a revocable
trust is considered to be a transfer of assets by the individual and any
payment, other than to or for the benefit of the  individual,  from  the
portion  of an irrevocable trust which, under any circumstance, could be
made available to the individual is  considered  to  be  a  transfer  of
assets  by  the  individual and, further, the value of any portion of an
irrevocable trust from which no payment could be made to the  individual
under  any circumstances is considered to be a transfer of assets by the
individual for purposes of this section as of the date of  establishment
of  the trust, or, if later, the date on which payment to the individual
is foreclosed.
  (7) IN THE CASE OF A TRANSFER BY AN  INDIVIDUAL  WHICH  RESULTS  IN  A
PERIOD  OF  INELIGIBILITY FOR SUCH INDIVIDUAL OR HIS OR HER SPOUSE, SUCH

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PERIOD OF INELIGIBILITY WILL CONTINUE WITHOUT REGARD TO THE INDIVIDUAL'S
BECOMING AN INSTITUTIONALIZED INDIVIDUAL IF THE TRANSFER WAS MADE  WHILE
THE INDIVIDUAL WAS A NON-INSTITUTIONALIZED INDIVIDUAL AND WITHOUT REGARD
TO  THE  INDIVIDUAL'S BECOMING A NON-INSTITUTIONALIZED INDIVIDUAL IF THE
TRANSFER WAS MADE WHILE THE INDIVIDUAL WAS AN INSTITUTIONALIZED INDIVID-
UAL. IN NO EVENT SHALL THE TOTAL PERIOD OF INELIGIBILITY FOR  LONG  TERM
CARE  SERVICES  AND  NURSING  FACILITY  SERVICES RESULTING FROM THE SAME
TRANSFER OF ASSETS EXCEED THE PERIOD CALCULATED PURSUANT TO SUBPARAGRAPH
FOUR OF THIS PARAGRAPH.
  S 3. Clause (B) of subparagraph (i) of paragraph (d) of subdivision  2
of  section  366-c of the social services law, as amended by chapter 433
of the laws of 1997, is amended to read as follows:
  (B) on and after January first, nineteen hundred  ninety-five  through
June  thirtieth,  nineteen  hundred  ninety-nine,  seventy-four thousand
eight hundred twenty dollars or such greater amount as may  be  required
under  federal  law;  PROVIDED,  HOWEVER,  THAT SUCH AMOUNT SHALL NOT BE
INCREASED OR ADJUSTED TO AN AMOUNT IN EXCESS OF THE ALLOWANCE  PERMITTED
UNDER THIS PARAGRAPH ON THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF
TWO THOUSAND NINE THAT AMENDED THIS CLAUSE;
  S  4.  Paragraph  (b)  of subdivision 5 of section 366-c of the social
services law, as added by chapter 558 of the laws of 1989, is amended to
read as follows:
  (b) An institutionalized spouse shall not be  ineligible  for  medical
assistance  by reason of excess resources determined under paragraph (a)
of this subdivision, if (I) the  institutionalized  spouse  executes  an
assignment  of  support from the community spouse in favor of the social
services district and the department, or the institutionalized spouse is
unable to execute such assignment due to physical or mental  impairment,
[or]  AND  (II)  to  deny  assistance would create an undue hardship, as
defined by the commissioner.
  S 5. Section four of this act shall not take effect unless  and  until
the commissioner of health receives all necessary approvals under feder-
al  law  and  regulation  to implement its provisions, and provided that
such provisions do not prevent the receipt of federal financial  partic-
ipation under the medical assistance program. The commissioner of health
shall  submit  such  waiver applications and/or state plan amendments as
may be necessary to obtain such approvals and to ensure continued feder-
al financial participation.
  S 6. The commissioner of health is authorized to promulgate  or  adopt
any  rules  or regulations necessary to implement the provisions of this
act and any procedures, forms, or instructions necessary for such imple-
mentation may be adopted and issued on or after the  effective  date  of
this act. Notwithstanding any inconsistent provision of the state admin-
istrative  procedure  act  or  any other provision of law, rule or regu-
lation, the commissioner of health is authorized to adopt  or  amend  or
promulgate  on  an  emergency  basis any regulation he or she determines
necessary to implement any provision of this act on its effective date.
  S 7. If any clause, sentence, paragraph, section or part of  this  act
shall  be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate the remainder ther-
eof, but shall be confined in its operation  to  the  clause,  sentence,
paragraph,  section or part thereof directly involved in the controversy
in which such judgment shall have been rendered.
  S 8. This act shall take effect immediately and  shall  be  deemed  to
have  been in full force and effect on and after April 1, 2009; provided
that sections one through five of this act shall  take  effect  July  1,

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2009;  and provided further that the commissioner of health shall notify
the legislative bill drafting commission  upon  the  occurrence  of  the
approvals  required  under  section  five  of this act in order that the
commission  may  maintain an accurate and timely effective data base for
the official text of the laws of the state of New York in furtherance of
effecting the provisions of  section  44  of  the  legislative  law  and
section 70-b of the public officers law.