Bill Text: NY A00833 | 2021-2022 | General Assembly | Introduced

Bill Title: Relates to the definition of the "look-back period" for the determination of eligibility of an individual for medical assistance benefits and exempts certain assets used on the individual's behalf or for care services provided to the individual by a family member or informal caregiver.

Spectrum: Strong Partisan Bill (Democrat 19-1)

Status: (Introduced) 2021-01-20 - reported referred to ways and means [A00833 Detail]

Download: New_York-2021-A00833-Introduced.html

                STATE OF NEW YORK


                               2021-2022 Regular Sessions

                   IN ASSEMBLY


                                     January 6, 2021

          THIELE,  STECK,  CARROLL,  HEVESI,  ABINANTI, GOODELL -- read once and
          referred to the Committee on Health

        AN ACT to amend the social services law, in  relation  to  the  determi-
          nation of eligibility for medical assistance benefits

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Clause (vi) of subparagraph 1 of paragraph (e) of  subdivi-
     2  sion  5 of section 366 of the social services law, as amended by section
     3  13 of part MM of chapter 56 of the laws of 2020, is amended to  read  as
     4  follows:
     5    (vi)  "look-back  period"  means  the  sixty-month  period immediately
     6  preceding the date that an institutionalized individual is both institu-
     7  tionalized and has applied for medical assistance, or in the case  of  a
     8  non-institutionalized  individual,  subject  to  federal  approval,  for
     9  transfers made on or after October first, two thousand twenty, the thir-
    10  ty-month period immediately preceding the date  that  such  non-institu-
    11  tionalized  individual  applies  for medical assistance coverage of long
    12  term care services. Nothing herein precludes a review of eligibility for
    13  retroactive authorization for medical expenses incurred during the three
    14  months prior to the month of application for medical assistance.
    15    § 2. Clauses (iii) and (iv) of subparagraph  4  of  paragraph  (e)  of
    16  subdivision  5  of  section  366 of the social services law, as added by
    17  section 26-a of part C of chapter 109 of the laws of 2006,  are  amended
    18  and a new clause (v) is added to read as follows:
    19    (iii)  a  satisfactory showing is made that: (A) the individual or the
    20  individual's spouse intended to dispose of the  assets  either  at  fair
    21  market  value,  or  for  other valuable consideration; or (B) the assets
    22  were transferred exclusively for a purpose other  than  to  qualify  for

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

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     1  medical  assistance;  or  (C)  all assets transferred for less than fair
     2  market value have been returned to the individual or used on  the  indi-
     3  vidual's behalf; or
     4    (iv)  denial  of  eligibility would cause an undue hardship, such that
     5  application of the transfer of assets provision would deprive the  indi-
     6  vidual  of  medical care such that the individual's health or life would
     7  be endangered, or would deprive the individual of food, clothing,  shel-
     8  ter,  or  other  necessities  of  life. The commissioner of health shall
     9  develop a hardship waiver process which shall include a  timely  process
    10  for  determining  whether an undue hardship waiver will be granted and a
    11  timely process under which an adverse determination can be appealed. The
    12  commissioner of health shall provide notice of the hardship waiver proc-
    13  ess in writing to those individuals who are required to comply with  the
    14  transfer  of  assets provision under this section. If such an individual
    15  is an institutionalized individual, the facility in which he or  she  is
    16  residing shall be permitted to file an undue hardship waiver application
    17  on  behalf  of such individual with the consent of the individual or the
    18  personal representative of the individual[.]; or
    19    (v) the transfer was to a family member or informal  caregiver  before
    20  the  current  period  of institutional status, or before the application
    21  for Medicaid for non-institutional long-term care services, and all  the
    22  following conditions are met:
    23    (A) the transfer is in exchange for care services the family member or
    24  informal caregiver provided to the client or the client's spouse;
    25    (B)  the  client  or the client's spouse had a documented need for the
    26  care services provided by the family member or informal caregiver;
    27    (C) the fair market value of the asset transferred  is  comparable  to
    28  the fair market value of the care services provided; and
    29    (D)  the  time for which care services are claimed is reasonable based
    30  on the kind of services provided.
    31    § 3. Subparagraph 5 of paragraph (e) of subdivision 5 of  section  366
    32  of  the social services law, as added by section 26-a of part C of chap-
    33  ter 109 of the laws of 2006, is amended to read as follows:
    34    (5) Any transfer made by an  individual  or  the  individual's  spouse
    35  under  subparagraph three of this paragraph shall cause the person to be
    36  ineligible for services for a period  equal  to  the  total,  cumulative
    37  uncompensated  value of all assets transferred during or after the look-
    38  back period, divided by the average monthly costs  of  nursing  facility
    39  services provided to a private patient for a given period of time at the
    40  time  of  application,  as determined pursuant to the regulations of the
    41  department. For purposes of this subparagraph, the average monthly costs
    42  of nursing facility services to a private patient for a given period  of
    43  time  at  the  time  of  application shall be presumed to be one hundred
    44  twenty percent of the average medical assistance rate of payment  as  of
    45  the  first day of January of each year for nursing facilities within the
    46  region where the applicant resides, as established pursuant to paragraph
    47  (b) of subdivision sixteen of section twenty-eight  hundred  seven-c  of
    48  the public health law. The period of ineligibility shall begin the first
    49  day  of  a  month during or after which assets have been transferred for
    50  less than fair market value, or, (i) for institutionalized  individuals,
    51  the  first  day  the otherwise eligible individual is receiving services
    52  for which medical assistance coverage would be  available  based  on  an
    53  approved  application  for  such care but for the provisions of subpara-
    54  graph three of this paragraph, whichever is later, and  which  does  not
    55  occur  in  any  other  periods of ineligibility under this paragraph, or
    56  (ii) for non-institutionalized individuals, the first day the  otherwise

        A. 833                              3

     1  eligible  individual  is  functionally  eligible  for services for which
     2  medical assistance would be available based on an  approved  application
     3  for such care but for the provisions of subparagraph three of this para-
     4  graph, whichever is later, and which does not occur in any other periods
     5  of ineligibility under this paragraph.
     6    §  4.  Subdivision  12 of section 366-a of the social services law, as
     7  added by section 36-c of part B of chapter 57 of the laws  of  2015,  is
     8  amended to read as follows:
     9    12.  The commissioner shall develop expedited procedures for determin-
    10  ing medical assistance eligibility for any medical assistance  applicant
    11  with  an  immediate need for personal care or consumer directed personal
    12  assistance services pursuant to paragraph  (e)  of  subdivision  two  of
    13  section  three  hundred  sixty-five-a  of  this  title  or section three
    14  hundred sixty-five-f of this title, respectively. Such procedures  shall
    15  require that a final eligibility determination be made within seven days
    16  of the date of a [complete] medical assistance application that shall be
    17  complete,  except  that a non-institutionalized individual applicant may
    18  attest that no transfers of assets were made within the look-back period
    19  under subdivision five of section three hundred sixty-six of this title;
    20  provided the non-institutionalized  individual  applicant  shall  submit
    21  complete  documentation  of  assets  during  the look-back period within
    22  thirty days of the date the application was filed.
    23    § 5. This act shall take effect immediately; provided,  however,  that
    24  if the amendments made to clause (vi) of subparagraph 1 of paragraph (e)
    25  of subdivision 5 of section 366 of the social services law by section 13
    26  of part MM of chapter 56 of the laws of 2020 shall not have taken effect
    27  on or before such date then section one of this act shall take effect on
    28  the same date and in the same manner as such chapter of the laws of 2020
    29  takes effect.