Senate Bill S5310

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5310
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              March 20, 2017
                                ___________
 
 Introduced  by  Sen.  CROCI  --  (at request of the Division of Veterans
   Affairs) -- read twice and ordered printed, and  when  printed  to  be
   committed to the Committee on Veterans, Homeland Security and Military
   Affairs
 
 AN  ACT  to  amend  the  general business law, in relation to preventing
   financial deception and harmful practices affecting veterans and their
   family members
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new section
 349-f to read as follows:
   §  349-F. PENSION POACHING PREVENTION ACT. 1. LEGISLATIVE FINDINGS AND
 INTENT. NATIONALLY, VETERANS AND THEIR FAMILY MEMBERS ARE OFTEN  SUBJECT
 TO  A  PRACTICE COMMONLY CALLED "PENSION POACHING". THIS TROUBLING PRAC-
 TICE, AS DESCRIBED IN RECENT REPORTS FROM THE FEDERAL TRADE  COMMISSION,
 THE  FEDERAL GOVERNMENT ACCOUNTABILITY OFFICE, THE UNITED STATES DEPART-
 MENT OF VETERANS AFFAIRS, AND SEVERAL OTHER ENTITIES,  GENERALLY  TARGET
 ELDERLY OR DISABLED VETERANS AND THEIR FAMILY MEMBERS.  PENSION POACHING
 INVOLVES  DISHONEST  FINANCIAL  PLANNERS,  INSURANCE  AGENTS,  AND OTHER
 PROFESSIONALS LURING VETERANS AND THEIR FAMILY MEMBERS TO  PAY  SUBSTAN-
 TIAL  FUNDS  FOR VETERANS' BENEFITS SERVICES THAT THE OFFERING ENTITY IS
 UNQUALIFIED TO PROVIDE AND THAT  CAN  DETRIMENTALLY  IMPACT  THE  FUTURE
 FINANCIAL SITUATIONS OF THE VETERAN AND HIS OR HER DEPENDENTS.
   ENTITIES  ENGAGING IN PENSION POACHING TEND TO USE HIGH-PRESSURE SALES
 TACTICS DIRECTED TOWARD POTENTIAL CUSTOMERS, FALSELY GUARANTEEING  BENE-
 FITS  FOR  VETERANS  AND THEIR FAMILIES EVEN WHEN THE ADVERTISING ENTITY
 LACKS THE FEDERAL ACCREDITATION REQUIRED BY LAW TO FILE SUCH CLAIMS  AND
 APPEALS  FOR  FEDERAL  VETERANS' BENEFITS. OFTEN, THEY PERSUADE VETERANS
 AND THEIR FAMILY MEMBERS TO ABRUPTLY MOVE MOST OR ALL OF THEIR ASSETS TO
 POTENTIALLY QUALIFY FOR CERTAIN FEDERAL VETERANS'  BENEFITS,  FREQUENTLY
 CAUSING  VETERANS  AND  THEIR FAMILY MEMBERS TO UNWITTINGLY LOSE CONTROL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10148-01-7

 S. 5310                             2
 
 OVER THEIR ASSETS AND ADVERSELY AFFECTING THE ABILITY  OF  VETERANS  AND
 THEIR  FAMILIES  TO QUALIFY FOR MEDICAID AND OTHER IMPORTANT BENEFITS IN
 THE FUTURE. THESE ENTITIES FREQUENTLY CHARGE  EXTREMELY  HIGH  FEES  FOR
 THESE  SERVICES,  EVEN  IN MATTERS WHERE FEDERAL LAW EXPRESSLY PROHIBITS
 SUCH FEES.
   THROUGH THIS SECTION, THE LEGISLATURE INTENDS TO RESTRAIN THIS HARMFUL
 AND DECEPTIVE PRACTICE WITHIN THE STATE, PROVIDING NECESSARY PROTECTIONS
 TO THE MEN AND WOMEN OF  THIS  STATE  WHO  COURAGEOUSLY  SERVED  IN  OUR
 NATION'S ARMED FORCES.
   2. DEFINITIONS. AS USED IN THIS SECTION:
   (A)  "VETERAN"  MEANS ANY PERSON WHO SERVED IN THE UNITED STATES ARMY,
 NAVY, AIR FORCE, MARINE CORPS OR COAST GUARD, OR IN ANY OF  THE  RESERVE
 COMPONENTS OF ANY BRANCH OF THE ARMED FORCES OF THE UNITED STATES, OR IN
 THE NATIONAL GUARD, AND WHO RECEIVED A DISCHARGE OR SEPARATION THEREFROM
 UNDER CONDITIONS OTHER THAN DISHONORABLE.
   (B)  "VETERANS'  BENEFITS MATTER" MEANS THE PREPARATION, PRESENTATION,
 OR PROSECUTION OF ANY CLAIM  AFFECTING  ANY  PERSON  WHO  HAS  FILED  OR
 EXPRESSED  AN  INTENT TO FILE A CLAIM FOR ANY BENEFIT, PROGRAM, SERVICE,
 COMMODITY, FUNCTION OR STATUS, ENTITLEMENT TO WHICH IS DETERMINED  UNDER
 THE LAWS AND REGULATIONS ADMINISTERED BY THE UNITED STATES DEPARTMENT OF
 VETERANS  AFFAIRS  OR  THE  DIVISION  OF VETERANS' AFFAIRS PERTAINING TO
 VETERANS, THEIR DEPENDENTS, THEIR SURVIVORS, AND ANY OTHER PARTY  ELIGI-
 BLE FOR SUCH BENEFITS.
   (C) "COMPENSATION" MEANS MONEY, PROPERTY OR ANYTHING ELSE OF VALUE.
   (D)  "ENTITY"  INCLUDES,  BUT  IS  NOT LIMITED TO, ANY NATURAL PERSON,
 CORPORATION, TRUST, PARTNERSHIP, LIMITED LIABILITY COMPANY, ALLIANCE  OR
 UNINCORPORATED ASSOCIATION.
   3.  LIMITS  ON  REPRESENTATION  AND  COMPENSATION. (A) NO ENTITY SHALL
 RECEIVE COMPENSATION FOR ADVISING OR ASSISTING ANY PARTY WITH ANY VETER-
 ANS' BENEFITS MATTER, EXCEPT AS PERMITTED UNDER TITLE 38 OF  THE  UNITED
 STATES  CODE  AND CORRESPONDING PROVISIONS WITHIN TITLE 38 OF THE UNITED
 STATES CODE OF FEDERAL REGULATIONS.
   (B) NO ENTITY SHALL RECEIVE COMPENSATION FOR REFERRING  ANY  PARTY  TO
 ANOTHER  INDIVIDUAL  TO  ADVISE  OR ASSIST THIS PARTY WITH ANY VETERANS'
 BENEFITS MATTER.
   (C) ANY ENTITY SEEKING TO RECEIVE COMPENSATION FOR ADVISING OR ASSIST-
 ING ANY PARTY WITH ANY VETERANS' BENEFITS MATTER SHALL, BEFORE RENDERING
 ANY SERVICES, MEMORIALIZE ALL TERMS REGARDING  THE  PARTY'S  PAYMENT  OF
 FEES  FOR  SERVICES  RENDERED  IN  A  WRITTEN  AGREEMENT, SIGNED BY BOTH
 PARTIES, THAT ADHERES TO ALL CRITERIA SPECIFIED WITHIN TITLE 38, SECTION
 14.636, OF THE UNITED STATES CODE OF FEDERAL REGULATIONS.
   (D) NO ENTITY SHALL RECEIVE ANY FEES FOR ANY SERVICES RENDERED  BEFORE
 THE  DATE ON WHICH A NOTICE OF DISAGREEMENT IS FILED WITH RESPECT TO THE
 VETERAN'S CASE.
   (E) NO ENTITY SHALL GUARANTEE, EITHER DIRECTLY OR BY IMPLICATION, THAT
 ANY PARTY IS CERTAIN TO RECEIVE SPECIFIC VETERANS' BENEFITS OR THAT  ANY
 PARTY  IS  CERTAIN  TO RECEIVE A SPECIFIC LEVEL, PERCENTAGE OR AMOUNT OF
 VETERANS' BENEFITS.
   (F) NO ENTITY SHALL RECEIVE EXCESSIVE OR UNREASONABLE FEES AS  COMPEN-
 SATION  FOR  ADVISING OR ASSISTING ANY PARTY WITH ANY VETERANS' BENEFITS
 MATTER. THE FACTORS ARTICULATED WITHIN TITLE 38, SECTION 14.636  OF  THE
 CODE OF FEDERAL REGULATIONS SHALL GOVERN DETERMINATIONS OF WHETHER A FEE
 IS EXCESSIVE OR UNREASONABLE.
   4.  REQUIRED  DISCLOSURE.  (A)  NO  ENTITY  SHALL ADVISE OR ASSIST FOR
 COMPENSATION ANY PARTY WITH ANY VETERANS' BENEFITS MATTER WITHOUT CLEAR-
 LY PROVIDING, AT THE OUTSET OF THIS BUSINESS RELATIONSHIP, THE FOLLOWING

 S. 5310                             3
 
 DISCLOSURE, BOTH ORALLY AND IN WRITING: "THIS BUSINESS IS NOT  SPONSORED
 BY,  OR  AFFILIATED  WITH,  THE  UNITED  STATES  DEPARTMENT  OF VETERANS
 AFFAIRS, THE NEW YORK STATE DIVISION OF VETERANS' AFFAIRS, OR ANY  OTHER
 CONGRESSIONALLY CHARTERED VETERANS SERVICE ORGANIZATION, OTHER ORGANIZA-
 TIONS,  INCLUDING  BUT  NOT  LIMITED  TO  THE NEW YORK STATE DIVISION OF
 VETERANS' AFFAIRS, YOUR LOCAL COUNTY VETERANS SERVICE AGENCY  AND  OTHER
 CONGRESSIONALLY CHARTERED VETERANS SERVICE ORGANIZATIONS, MAY BE ABLE TO
 PROVIDE  YOU  WITH  THIS  SERVICE  FREE  OF CHARGE. PRODUCTS OR SERVICES
 OFFERED BY THIS BUSINESS ARE NOT NECESSARILY ENDORSED BY  ANY  OF  THESE
 ORGANIZATIONS.   YOU MAY QUALIFY FOR OTHER VETERANS' BENEFITS BEYOND THE
 BENEFITS FOR WHICH YOU ARE RECEIVING SERVICES HERE." THE WRITTEN DISCLO-
 SURE SHALL APPEAR IN AT LEAST TWELVE-POINT FONT, AND SHALL APPEAR  IN  A
 READILY NOTICEABLE AND IDENTIFIABLE PLACE IN THE ENTITY'S AGREEMENT WITH
 THE  PARTY SEEKING SERVICES. THE PARTY SHALL VERBALLY ACKNOWLEDGE UNDER-
 STANDING OF THE ORAL DISCLOSURE, AND SHALL PROVIDE HIS OR HER  SIGNATURE
 TO  REPRESENT UNDERSTANDING OF THESE PROVISIONS ON THE DOCUMENT IN WHICH
 THE WRITTEN DISCLOSURE  APPEARS.  THE  ENTITY  OFFERING  SERVICES  SHALL
 RETAIN  A COPY OF THE WRITTEN DISCLOSURE WHILE PROVIDING VETERANS' BENE-
 FITS SERVICES FOR COMPENSATION TO THE PARTY AND FOR AT  LEAST  ONE  YEAR
 AFTER THE DATE ON WHICH THIS SERVICE RELATIONSHIP TERMINATES.
   (B)  NO  ENTITY SHALL ADVERTISE FOR COMPENSATION SERVICES IN VETERANS'
 BENEFITS MATTERS WITHOUT INCLUDING THE FOLLOWING DISCLOSER: "THIS  BUSI-
 NESS  IS NOT SPONSORED BY, OR AFFILIATED WITH, THE UNITED STATES DEPART-
 MENT OF VETERANS AFFAIRS, THE  NEW  YORK  STATE  DIVISION  OF  VETERANS'
 AFFAIRS,  OR ANY OTHER CONGRESSIONALLY CHARTERED VETERANS SERVICE ORGAN-
 IZATION. OTHER ORGANIZATIONS, INCLUDING BUT NOT LIMITED TO THE NEW  YORK
 STATE  DIVISION OF VETERANS' AFFAIRS, YOUR LOCAL COUNTY VETERANS SERVICE
 AGENCY, AND OTHER CONGRESSIONALLY CHARTERED VETERANS  SERVICE  ORGANIZA-
 TIONS,  MAY  BE  ABLE TO PROVIDE YOU WITH THESE SERVICES FREE OF CHARGE.
 PRODUCTS OR SERVICES  OFFERED  BY  THIS  BUSINESS  ARE  NOT  NECESSARILY
 ENDORSED BY ANY OF THESE ORGANIZATIONS. YOU MAY QUALIFY FOR OTHER VETER-
 ANS'  BENEFITS  BEYOND  THE SERVICES THAT THIS BUSINESS OFFERS."  IF THE
 ADVERTISEMENT IS PRINTED, INCLUDING BUT NOT  LIMITED  TO  ADVERTISEMENTS
 VISIBLE TO INTERNET USERS, THE DISCLOSURE MUST APPEAR IN A READILY VISI-
 BLE  PLACE  ON  THE  ADVERTISEMENT.  IF THE ADVERTISEMENT IS VERBAL, THE
 SPOKEN STATEMENT OF THE DISCLOSURE MUST BE CLEAR AND INTELLIGIBLE.
   5. RIGHT OF ACTION. (A) ANY VIOLATION OF THIS SECTION SHALL CONSTITUTE
 A DECEPTIVE ACT IN THE CONDUCT OF BUSINESS, TRADE OR COMMERCE, AND SHALL
 BE SUBJECT TO THE PROVISIONS OF SECTION THREE HUNDRED FORTY-NINE OF THIS
 ARTICLE, INCLUDING ANY  RIGHT  OF  ACTION  AND  CORRESPONDING  PENALTIES
 DESCRIBED WITHIN SUCH SECTION.
   (B)  IF  AN ENTITY'S VIOLATION OF THIS SECTION CONCERNS A PARTY WHO IS
 SIXTY-FIVE YEARS OF AGE OR OLDER, IT  MAY  BE  LIABLE  FOR  SUPPLEMENTAL
 CIVIL  PENALTIES  AS  ESTABLISHED  WITHIN,  AND SUBJECT TO THE TERMS OF,
 SECTION THREE HUNDRED FORTY-NINE-C OF THIS ARTICLE.
   6. SEVERABILITY. IF ANY PROVISION OF THIS SECTION OR  ITS  APPLICATION
 TO  ANY  PERSON  OR  CIRCUMSTANCE IS EVER HELD INVALID, THE REMAINDER OF
 THIS SECTION OR THE APPLICATION OF ITS PROVISIONS TO  OTHER  PERSONS  OR
 CIRCUMSTANCES REMAINS UNAFFECTED.
   § 2. This act shall take effect on the one hundred twentieth day after
 it shall have become a law.