Bill Text: NY S08337 | 2019-2020 | General Assembly | Introduced

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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: Partisan Bill (Democrat 13-0)

Status: (Engrossed - Dead) 2020-07-22 - referred to ways and means [S08337 Detail]

Download: New_York-2019-S08337-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8337

                    IN SENATE

                                      May 15, 2020
                                       ___________

        Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
          printed to be committed 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
    23  medical  assistance;  or  (C)  all assets transferred for less than fair
    24  market value have been returned to the individual or used on  the  indi-
    25  vidual's behalf; or
    26    (iv)  denial  of  eligibility would cause an undue hardship, such that
    27  application of the transfer of assets provision would deprive the  indi-
    28  vidual  of  medical care such that the individual's health or life would

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16397-01-0
        S. 8337                             2

     1  be endangered, or would deprive the individual of food, clothing,  shel-
     2  ter,  or  other  necessities  of  life. The commissioner of health shall
     3  develop a hardship waiver process which shall include a  timely  process
     4  for  determining  whether an undue hardship waiver will be granted and a
     5  timely process under which an adverse determination can be appealed. The
     6  commissioner of health shall provide notice of the hardship waiver proc-
     7  ess in writing to those individuals who are required to comply with  the
     8  transfer  of  assets provision under this section. If such an individual
     9  is an institutionalized individual, the facility in which he or  she  is
    10  residing shall be permitted to file an undue hardship waiver application
    11  on  behalf  of such individual with the consent of the individual or the
    12  personal representative of the individual[.]; or
    13    (v) The transfer was to a family member or informal  caregiver  before
    14  the  current  period  of institutional status, or before the application
    15  for Medicaid for non-institutional long-term care services, and all  the
    16  following conditions are met:
    17    (A) the transfer is in exchange for care services the family member or
    18  informal caregiver provided to the client or the client's spouse;
    19    (B)  the  client  or the client's spouse had a documented need for the
    20  care services provided by the family member or informal caregiver;
    21    (C) the fair market value of the asset transferred  is  comparable  to
    22  the fair market value of the care services provided; and
    23    (D)  the  time for which care services are claimed is reasonable based
    24  on the kind of services provided.
    25    § 3. Subparagraph 5 of paragraph (e) of subdivision 5 of  section  366
    26  of  the social services law, as added by section 26-a of part C of chap-
    27  ter 109 of the laws of 2006, is amended to read as follows:
    28    (5) Any transfer made by an  individual  or  the  individual's  spouse
    29  under  subparagraph three of this paragraph shall cause the person to be
    30  ineligible for services for a period  equal  to  the  total,  cumulative
    31  uncompensated  value of all assets transferred during or after the look-
    32  back period, divided by the average monthly costs  of  nursing  facility
    33  services provided to a private patient for a given period of time at the
    34  time  of  application,  as determined pursuant to the regulations of the
    35  department. For purposes of this subparagraph, the average monthly costs
    36  of nursing facility services to a private patient for a given period  of
    37  time  at  the  time  of  application shall be presumed to be one hundred
    38  twenty percent of the average medical assistance rate of payment  as  of
    39  the  first day of January of each year for nursing facilities within the
    40  region where the applicant resides, as established pursuant to paragraph
    41  (b) of subdivision sixteen of section twenty-eight  hundred  seven-c  of
    42  the public health law. The period of ineligibility shall begin the first
    43  day  of  a  month during or after which assets have been transferred for
    44  less than fair market value, or, (i) for institutionalized  individuals,
    45  the  first  day  the otherwise eligible individual is receiving services
    46  for which medical assistance coverage would be  available  based  on  an
    47  approved  application  for  such care but for the provisions of subpara-
    48  graph three of this paragraph, whichever is later, and  which  does  not
    49  occur  in  any  other  periods of ineligibility under this paragraph, or
    50  (ii) for non-institutionalized individuals, the first day the  otherwise
    51  eligible  individual  is  functionally  eligible  for services for which
    52  medical assistance would be available based on an  approved  application
    53  for such care but for the provisions of subparagraph three of this para-
    54  graph, whichever is later, and which does not occur in any other periods
    55  of ineligibility under this paragraph.
        S. 8337                             3

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