S T A T E O F N E W Y O R K
________________________________________________________________________
7091
2009-2010 Regular Sessions
I N A S S E M B L Y
March 20, 2009
___________
Introduced by M. of A. CARROZZA, WEPRIN -- read once and referred to the
Committee on Social Services
AN ACT to amend the social services law, in relation to medical assist-
ance for needy persons
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. 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 as 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. THE DEPARTMENT SHALL NOT CONSIDER THE AVAILABILITY OF AN
INDIVIDUAL'S ELECTIVE SHARE OF THE INDIVIDUAL'S DECEASED SPOUSE'S
ESTATE, AS AN AVAILABLE RESOURCE IN DETERMINING ELIGIBILITY, PROVIDED:
(I) THE INDIVIDUAL HAS EXECUTED AN EFFECTIVE WAIVER OF THE RIGHT OF
ELECTION OF SUCH SHARE, IN ACCORDANCE WITH PARAGRAPH (E) OF SECTION
5-1.1-A OF THE ESTATES, POWERS AND TRUSTS LAW; (II) THE WAIVER CAN NOT
BE AMENDED OR REVOKED BY THE INDIVIDUAL, INCLUDING, WITHOUT LIMITATION,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10258-01-9
A. 7091 2
WAIVERS EXECUTED WITH CONSIDERATION; AND (III) THE INDIVIDUAL'S ELECTIVE
SHARE IS NOT OTHERWISE CONSIDERED AVAILABLE, IN ACCORDANCE WITH SUBDIVI-
SION FIVE OF THIS SECTION. 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 recip-
ient 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 categorically eligible as blind or disabled, as determined under
regulations prescribed by the social security act for medical assist-
ance, the income and resources of parents or spouses of parents are not
considered available to that child if she/he 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 XVIII of the federal social
security act shall be required to apply for and fully utilize such bene-
fits in accordance with this chapter.
S 2. Paragraph (f) of subdivision 5 of section 366 of the social
services law, as relettered by section 26-a of part C of chapter 109 of
the laws of 2006, is relettered paragraph (g) and a new paragraph (f) is
added to read as follows:
(F) (1) AVAILABLE ASSETS AS DEFINED IN CLAUSE (I) OF SUBPARAGRAPH ONE
OF PARAGRAPH (D) OF THIS SUBDIVISION SHALL INCLUDE THE VALUE OF THE
INDIVIDUAL'S ELECTIVE SHARE OF THE INDIVIDUAL'S DECEASED SPOUSE'S
ESTATE, EXCEPT WHERE:
(I) THE INDIVIDUAL HAS EXECUTED AN EFFECTIVE WAIVER OF THE INDIVID-
UAL'S DECEASED SPOUSE'S ESTATE, IN ACCORDANCE WITH PARAGRAPH (E) OF
SECTION 5-1.1-A OF THE ESTATES, POWERS AND TRUSTS LAW, AT LEAST THIRTY-
SIX MONTHS BEFORE THE INDIVIDUAL APPLIED FOR MEDICAID; OR
(II) IF THE INDIVIDUAL EXECUTED A WAIVER LESS THAN THIRTY-SIX MONTHS
BEFORE THE INDIVIDUAL APPLIED FOR MEDICAID, AND THE PERIOD OF INELIGI-
BILITY HAS EXPIRED.
(2) THE PERIOD OF INELIGIBILITY SHALL BE COMPUTED BY DETERMINING THE
VALUE OF THE INDIVIDUAL'S ELECTIVE SHARE AS OF THE DATE OF THE INDIVID-
UAL'S SPOUSE'S DEATH, DIVIDED BY THE AVERAGE COST OF NURSING FACILITY
SERVICES TO A PRIVATE PATIENT, AS DETERMINED BY THE COMMISSIONER.
(3) NO PERIOD OF INELIGIBILITY MAY BE CALCULATED UNTIL THE DEATH OF
THE INDIVIDUAL'S SPOUSE, AND SUCH PERIOD SHALL COMMENCE AS OF THE DATE
THE WAIVER IS SIGNED.
S 3. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.