S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6292
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 4, 2019
                                ___________
 
 Introduced by M. of A. MOSLEY -- read once and referred to the Committee
   on Veterans' Affairs
 
 AN  ACT  to  amend the general business law, in relation to enacting the
   pension poaching prevention act
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  This  act shall be known and may be cited as the "pension
 poaching prevention act".
   § 2. Legislative findings and intent. Nationally, veterans  and  their
 family  members  are often subject to a practice commonly called pension
 poaching. This troubling practice, as described in recent  reports  from
 the  Federal  Trade  Commission,  the  Federal Government Accountability
 Office, the United States Department 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 substantial funds for veterans' benefits  services
 that  the  offering entity is unqualified to provide and that can detri-
 mentally 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
 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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD10329-01-9

 A. 6292                             2
 
 these  services,  even  in matters where federal law expressly prohibits
 such fees.
   Through  this  legislation,  the  legislature intends to restrain this
 harmful and deceptive practice within New York State,  providing  neces-
 sary  protections  to  the  men and women of this state who courageously
 served in our nation's armed forces.
   § 3. The general business law is amended by adding a new section 349-f
 to read as follows:
   § 349-F. PENSION POACHING PREVENTION. 1. FOR PURPOSES OF THIS SECTION:
   (A) THE TERM "VETERANS' BENEFITS MATTER" MEANS THE PREPARATION,  PRES-
 ENTATION, 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 WHICH IS DETERMINED
 UNDER THE LAWS AND REGULATIONS ADMINISTERED BY THE UNITED STATES DEPART-
 MENT OF VETERANS AFFAIRS OR THE NEW YORK  STATE  DIVISION  OF  VETERANS'
 AFFAIRS  PERTAINING  TO VETERANS, THEIR DEPENDENTS, THEIR SURVIVORS, AND
 ANY OTHER PARTY ELIGIBLE FOR SUCH BENEFITS.
   (B) THE TERM "COMPENSATION" MEANS MONEY, PROPERTY, OR ANYTHING ELSE OF
 VALUE.
   (C) THE TERM "ENTITY" INCLUDES, BUT IS NOT  LIMITED  TO,  ANY  NATURAL
 PERSON,  CORPORATION,  TRUST,  PARTNERSHIP,  ALLIANCE, OR UNINCORPORATED
 ASSOCIATION.
   2. (A) NO ENTITY SHALL RECEIVE COMPENSATION FOR ADVISING OR  ASSISTING
 ANY  PARTY WITH ANY VETERANS' BENEFITS MATTER, EXCEPT AS PERMITTED UNDER
 TITLE 38 OF THE UNITED STATES  CODE  AND  THE  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
 PARTY'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.
   3. (A) NO ENTITY SHALL ADVISE OR ASSIST  FOR  COMPENSATION  ANY  PARTY
 WITH  ANY  VETERANS'  BENEFITS  MATTER WITHOUT CLEARLY PROVIDING, AT THE
 OUTSET OF THIS BUSINESS RELATIONSHIP,  THE  FOLLOWING  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  CHAR-
 TERED VETERANS SERVICE ORGANIZATION.  OTHER ORGANIZATIONS, INCLUDING BUT
 NOT  LIMITED  TO  THE NEW YORK STATE DIVISION OF VETERANS' AFFAIRS, YOUR
 LOCAL COUNTY VETERANS SERVICE AGENCY, AND  OTHER  CONGRESSIONALLY  CHAR-

 A. 6292                             3
 
 TERED  VETERANS  SERVICE  ORGANIZATIONS, MAY BE ABLE TO PROVIDE YOU WITH
 THIS SERVICE FREE OF CHARGE. PRODUCTS OR SERVICES OFFERED BY THIS  BUSI-
 NESS  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 DISCLOSURE MUST APPEAR  IN
 AT  LEAST  TWELVE-POINT FONT AND MUST APPEAR IN A READILY NOTICEABLE AND
 IDENTIFIABLE PLACE IN THE ENTITY'S  AGREEMENT  WITH  THE  PARTY  SEEKING
 SERVICES.  THE PARTY MUST VERBALLY ACKNOWLEDGE UNDERSTANDING OF THE ORAL
 DISCLOSURE AND MUST PROVIDE HIS OR HER  SIGNATURE  TO  REPRESENT  UNDER-
 STANDING  OF  THESE  PROVISIONS  ON  THE  DOCUMENT  IN WHICH THE WRITTEN
 DISCLOSURE APPEARS. THE ENTITY OFFERING SERVICES MUST RETAIN A  COPY  OF
 THE  WRITTEN  DISCLOSURE WHILE PROVIDING VETERANS' BENEFITS 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 DISCLOSURE: "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.
   4.  (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, SAID ENTITY MAY BE LIABLE FOR  SUPPLE-
 MENTAL  CIVIL  PENALTIES AS ESTABLISHED WITHIN, AND SUBJECT OF THE TERMS
 OF, SECTION THREE HUNDRED FORTY-NINE-C OF THIS ARTICLE.
   5.  IF ANY CLAUSE, SENTENCE, PARAGRAPH OR PART OF THIS SECTION OR  THE
 APPLICATION  THEREOF  SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURIS-
 DICTION TO BE INVALID, SUCH JUDGMENT SHALL NOT AFFECT, IMPAIR, OR INVAL-
 IDATE THE REMAINDER THEREOF, BUT SHALL BE CONFINED IN ITS  OPERATION  TO
 THE CLAUSE, SENTENCE, PARAGRAPH OR PART THEREOF DIRECTLY INVOLVED IN THE
 CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.
   § 4. This act shall take effect on the one hundred twentieth day after
 it shall have become a law.