S T A T E O F N E W Y O R K
________________________________________________________________________
5037
2011-2012 Regular Sessions
I N S E N A T E
May 2, 2011
___________
Introduced by Sen. KLEIN -- read twice and ordered printed, and when
printed to be committed to the Committee on Insurance
AN ACT to amend the insurance law, in relation to establishing a public
awareness program on the availability of long term health care insur-
ance and the tax credits therefor and accelerating payment of death
benefits or a special surrender value pursuant to a life insurance
policy upon receipt of end of life or palliative care; to amend the
tax law, in relation to credits for premiums paid for long-term care
insurance policies; and to amend the public health law, the insurance
law and the social services law, in relation to the provision of home-
maker services
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The insurance law is amended by adding a new section 342
to read as follows:
S 342. PUBLIC AWARENESS OF LONG TERM CARE INSURANCE. THE DEPARTMENT,
DEPARTMENT OF HEALTH, OFFICE FOR THE AGING AND DEPARTMENT OF TAXATION
AND FINANCE SHALL JOINTLY ESTABLISH AND CONDUCT A PUBLIC AWARENESS
PROGRAM ON THE AVAILABILITY AND COVERAGE PROVIDED BY HEALTH INSURANCE
PLANS FOR LONG TERM CARE, AND THE PROVISIONS OF VARIOUS TAX CREDITS
THEREFOR.
S 2. Paragraph 1 of subsection (a) of section 1113 of the insurance
law, as amended by chapter 563 of the laws of 2010, is amended to read
as follows:
(1) "Life Insurance," means every insurance upon the lives of human
beings, and every insurance appertaining thereto, including the granting
of endowment benefits, additional benefits in the event of death by
accident, additional benefits to safeguard the contract from lapse,
accelerated payments of part or all of the death benefit or a special
surrender value upon (A) diagnosis of terminal illness defined as a life
expectancy of twelve months or less, (B) diagnosis of a medical condi-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11222-01-1
S. 5037 2
tion requiring extraordinary medical care or treatment regardless of
life expectancy, (C) certification by a licensed health care practition-
er of any condition which requires continuous care for the remainder of
the insured's life in an eligible facility or at home when the insured
is chronically ill as defined by Section 7702(B) of the Internal Revenue
Code and regulations thereunder, provided the accelerated payments qual-
ify under Section 101(g)(3) of the Internal Revenue Code and all other
applicable sections of federal law in order to maintain favorable tax
treatment, (D) certification by a licensed health care practitioner that
the insured is chronically ill as defined by Section 7702 (B) of the
Internal Revenue Code and regulations thereunder, provided the acceler-
ated payments qualify under Section 101(g)(3) of the Internal Revenue
Code and all other applicable sections of federal law in order to main-
tain favorable tax treatment and the insurer that issues such policy is
a qualified long term care insurance carrier under Section 4980c of the
Internal Revenue Code or provide a special surrender value, upon total
and permanent disability of the insured, and optional modes of settle-
ment of proceeds, [or] (E) the insured's having been a resident of a
nursing home, as defined in section twenty-eight hundred one of the
public health law, for a period of three months or more, with an expec-
tation that such insured will remain a resident of a nursing home until
death, OR (F) THE INSURED'S HAVING BEEN THE RECIPIENT OF LONG TERM HOME
HEALTH CARE, HOSPICE OR ADULT DAY CARE SERVICES, OR OTHER SERVICES,
WHICH PROVIDE END OF LIFE OR PALLIATIVE CARE TO THE INSURED. "Life
insurance" also includes additional benefits to safeguard the contract
against lapse in the event of unemployment of the insured or in the
event the insured is a resident of a nursing home. Amounts paid the
insurer for life insurance and proceeds applied under optional modes of
settlement or under dividend options may be allocated by the insurer to
one or more separate accounts pursuant to section four thousand two
hundred forty of this chapter.
S 3. Subparagraph (A) of paragraph 11 of subsection (c) of section
3201 of the insurance law, as amended by chapter 563 of the laws of
2010, is amended to read as follows:
(A) The superintendent shall not approve a life insurance policy which
provides for accelerated payment of death benefits or special surrender
values pursuant to subparagraph (B), (C), (D) [or], (E) OR (F) of para-
graph one of subsection (a) of section one thousand one hundred thirteen
of this chapter unless it also provides for such accelerated payments or
special surrender values pursuant to subparagraph (A) of paragraph one
of subsection (a) of such section.
S 4. Subsection (f) of section 3230 of the insurance law, as amended
by chapter 563 of the laws of 2010, is amended to read as follows:
(f) This section shall apply to all life insurance policies or policy
riders or provisions thereof that provide for accelerated payment of
death benefits or a special surrender value pursuant to subparagraph
(A), (B), (C) [or], (E) OR (F) of paragraph one of subsection (a) of
section one thousand one hundred thirteen of this chapter.
S 5. Subdivision 1 of section 190 of the tax law, as amended by
section 17 of part B of chapter 58 of the laws of 2004, is amended to
read as follows:
1. General. A taxpayer shall be allowed a credit against the tax
imposed by this article, other than the taxes and fees imposed by
sections one hundred eighty and one hundred eighty-one of this article,
equal to [twenty percent] THE FOLLOWING PERCENTAGES of the premium paid
during the taxable year for long-term care insurance:
S. 5037 3
(A) FORTY PERCENT IF THE INSURED IS LESS THAN FORTY YEARS OF AGE AT
THE END OF THE TAX YEAR;
(B) THIRTY PERCENT IF THE INSURED IS LESS THAN FIFTY YEARS OF AGE, BUT
FORTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR;
(C) TWENTY-FIVE PERCENT IF THE INSURED IS LESS THAN FIFTY-FIVE YEARS
OF AGE, BUT FIFTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR; OR
(D) TWENTY PERCENT IF THE INSURED IS FIFTY-FIVE OR MORE YEARS OF AGE
AT THE END OF THE TAX YEAR.
In order to qualify for such credit, the taxpayer's premium payment
must be for the purchase of or for continuing coverage under a long-term
care insurance policy that qualifies for such credit pursuant to section
one thousand one hundred seventeen of the insurance law.
S 6. Paragraph (a) of subdivision 25-a of section 210 of the tax law,
as amended by section 18 of part B of chapter 58 of the laws of 2004, is
amended to read as follows:
(a) A taxpayer shall be allowed a credit against the tax imposed by
this article equal to [twenty percent] THE FOLLOWING PERCENTAGES of the
premium paid during the taxable year for long-term care insurance:
(I) FORTY PERCENT IF THE INSURED IS LESS THAN FORTY YEARS OF AGE AT
THE END OF THE TAX YEAR;
(II) THIRTY PERCENT IF THE INSURED IS LESS THAN FIFTY YEARS OF AGE,
BUT FORTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR;
(III) TWENTY-FIVE PERCENT IF THE INSURED IS LESS THAN FIFTY-FIVE YEARS
OF AGE, BUT FIFTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR; OR
(IV) TWENTY PERCENT IF THE INSURED IS FIFTY-FIVE OR MORE YEARS OF AGE
AT THE END OF THE TAX YEAR.
In order to qualify for such credit, the taxpayer's premium payment
must be for the purchase of or for continuing coverage under a long-term
care insurance policy that qualifies for such credit pursuant to section
one thousand one hundred seventeen of the insurance law.
S 7. Paragraph 1 of subsection (aa) of section 606 of the tax law, as
amended by section 1 of part P of chapter 61 of the laws of 2005, is
amended to read as follows:
(1) Residents. A taxpayer shall be allowed a credit against the tax
imposed by this article equal to [twenty percent] THE FOLLOWING PERCENT-
AGES of the premium paid during the taxable year for long-term care
insurance:
(A) FORTY PERCENT IF THE INSURED IS LESS THAN FORTY YEARS OF AGE AT
THE END OF THE TAX YEAR;
(B) THIRTY PRESENT IF THE INSURED IS LESS THAN FIFTY YEARS OF AGE, BUT
FORTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR;
(C) TWENTY-FIVE PERCENT IF THE INSURED IS LESS THAN FIFTY-FIVE YEARS
OF AGE, BUT FIFTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR; OR
(D) TWENTY PERCENT IF THE INSURED IS FIFTY-FIVE OR MORE YEARS OF AGE
AT THE END OF THE TAX YEAR.
In order to qualify for such credit, the taxpayer's premium payment
must be for the purchase of or for continuing coverage under a long-term
care insurance policy that qualifies for such credit pursuant to section
one thousand one hundred seventeen of the insurance law. If the amount
of the credit allowable under this subsection for any taxable year shall
exceed the taxpayer's tax for such year, the excess may be carried over
to the following year or years and may be deducted from the taxpayer's
tax for such year or years.
S 8. Paragraph 1 of subsection (k) of section 1456 of the tax law, as
amended by section 20 of part B of chapter 58 of the laws of 2004, is
amended to read as follows:
S. 5037 4
(1) A taxpayer shall be allowed a credit against the tax imposed by
this article equal to [twenty percent] THE FOLLOWING PERCENTAGES of the
premium paid during the taxable year for long-term care insurance:
(A) FORTY PERCENT IF THE INSURED IS LESS THAN FORTY YEARS OF AGE AT
THE END OF THE TAX YEAR;
(B) THIRTY PERCENT IF THE INSURED IS LESS THAN FIFTY YEARS OF AGE, BUT
FORTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR;
(C) TWENTY-FIVE PERCENT IF THE INSURED IS LESS THAN FIFTY-FIVE YEARS
OF AGE, BUT FIFTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR; OR
(D) TWENTY PERCENT IF THE INSURED IS FIFTY-FIVE OR MORE YEARS OF AGE
AT THE END OF THE TAX YEAR.
In order to qualify for such credit, the taxpayer's premium payment
must be for the purchase of or for continuing coverage under a long-term
care insurance policy that qualifies for such credit pursuant to section
one thousand one hundred seventeen of the insurance law.
S 9. Paragraph 1 of subdivision (m) of section 1511 of the tax law, as
amended by section 21 of part B of chapter 58 of the laws of 2004, is
amended to read as follows:
(1) A taxpayer shall be allowed a credit against the tax imposed by
this article equal to [twenty percent] THE FOLLOWING PERCENTAGES of the
premium paid during the taxable year for long-term care insurance:
(A) FORTY PERCENT IF THE INSURED IS LESS THAN FIFTY YEARS OF AGE AT
THE END OF THE TAX YEAR;
(B) THIRTY PERCENT IF THE INSURED IS LESS THAN FIFTY YEARS OF AGE, BUT
FORTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR;
(C) TWENTY-FIVE PERCENT IF THE INSURED IS LESS THAN FIFTY-FIVE YEARS
OF AGE, BUT FIFTY OR MORE YEARS OF AGE, AT THE END OF THE TAX YEAR; OR
(D) TWENTY PERCENT IF THE INSURED IS FIFTY-FIVE OR MORE YEARS OF AGE
AT THE END OF THE TAX YEAR.
In order to qualify for such credit, the taxpayer's premium payment
must be for the purchase of or for continuing coverage under a long-term
care insurance policy that qualifies for such credit pursuant to section
one thousand one hundred seventeen of the insurance law.
S 10. Subdivision 4 of section 3602 of the public health law, as
amended by chapter 600 of the laws of 2002, is amended to read as
follows:
4. "Home health aide services" means simple health care tasks,
personal hygiene services, housekeeping tasks essential to the patient's
health and other related supportive services. Such services shall be
prescribed by a physician in accordance with a plan of treatment for the
patient and: (A) shall be under the supervision of a registered profes-
sional nurse from a certified home health agency or, when appropriate,
from a provider of a long term home health care program and of the
appropriate professional therapist from such agency or provider when the
aide carries out simple procedures as an extension of physical, speech
or occupational therapy, OR (B) HOMEMAKER SERVICES WHICH CAN BE ENGAGED
THROUGH A PRIVATE HOME AIDE, PROVIDED HOWEVER THAT SUCH AIDE HAS (1) MET
THE STANDARDS ESTABLISHED BY THE DEPARTMENT OF FAMILY ASSISTANCE, AND
(2) SUCH SERVICES ARE REIMBURSABLE THROUGH THE PARTNERSHIP FOR LONG TERM
CARE PROGRAM PURSUANT TO SECTION THREE HUNDRED SIXTY-SEVEN-F OF THE
SOCIAL SERVICES LAW. Such services may also be prescribed or ordered by
a nurse practitioner to the extent authorized by law and consistent with
the written practice agreement pursuant to subdivision three of section
six thousand nine hundred two of the education law and not prohibited by
federal law or regulation.
S. 5037 5
S 11. Subparagraph (A) of paragraph 6 of subsection (i) of section
3216 of the insurance law, as amended by chapter 557 of the laws of
2000, is amended to read as follows:
(A) Home care means the care and treatment of a covered person who is
under the care of a physician but only if hospitalization or confinement
in a nursing facility as defined in subchapter XVIII of the federal
Social Security Act, 42 U.S.C. SS 1395 et seq, would otherwise have been
required if home care was not provided, and the plan covering the home
health service is established and approved in writing by such physician.
Home care shall be provided by an agency [possessing] OR THROUGH A
PRIVATE HOME AIDE SERVICE PURSUANT TO THIS SUBPARAGRAPH. WHERE HOME CARE
IS PROVIDED BY AN AGENCY SUCH AGENCY SHALL POSSESS a valid certificate
of approval or license issued pursuant to article thirty-six of the
public health law and shall consist of one or more of the following:
(i) Part-time or intermittent home nursing care by or under the super-
vision of a registered professional nurse (R.N.).
(ii) Part-time or intermittent home health aide services which consist
primarily of caring for the patient.
(iii) Physical, occupational or speech therapy if provided by the home
health service or agency.
(iv) Medical supplies, drugs and medications prescribed by a physi-
cian, and laboratory services by or on behalf of a certified home health
agency or licensed home care services agency to the extent such items
would have been covered under the contract if the covered person had
been hospitalized or confined in a skilled nursing facility as defined
in [title] subchapter XVIII of the federal Social Security Act, 42
U.S.C. SS 1395 et seq.
WHERE HOMEMAKER SERVICES ARE PROVIDED THROUGH PRIVATE HOME AIDE
SERVICES SUCH CARE SHALL CONSIST OF ONE OR MORE OF THE FOLLOWING:
(I) SUCH AIDE SHALL HAVE MET THE STANDARDS ESTABLISHED BY THE DEPART-
MENT OF FAMILY ASSISTANCE.
(II) SUCH SERVICES ARE REIMBURSABLE THROUGH THE PARTNERSHIP FOR LONG
TERM CARE PROGRAM PURSUANT TO SECTION THREE HUNDRED SIXTY-SEVEN-F OF THE
SOCIAL SERVICES LAW.
(III) PART-TIME OR INTERMITTENT HOMEMAKER SERVICES WHICH CONSIST
PRIMARILY OF CARING FOR THE PATIENT.
S 12. Subparagraph (D) of paragraph 1 of subsection (k) of section
3221 of the insurance law, as amended by chapter 557 of the laws of
2000, is amended to read as follows:
(D) Home care shall be provided by an agency [possessing] OR THROUGH A
PRIVATE HOME AIDE SERVICE PURSUANT TO THIS SUBPARAGRAPH. WHERE HOME CARE
IS PROVIDED BY AN AGENCY SUCH AGENCY SHALL POSSESS a valid certificate
of approval or license issued pursuant to article thirty-six of the
public health law and shall consist of one or more of the following:
(i) Part-time or intermittent home nursing care by or under the super-
vision of a registered professional nurse (R.N.).
(ii) Part-time or intermittent home health aide services which consist
primarily of caring for the patient.
(iii) Physical, occupational or speech therapy if provided by the home
health service or agency.
(iv) Medical supplies, drugs and medications prescribed by a physi-
cian, and laboratory services by or on behalf of a certified home health
agency or licensed home care services agency to the extent such items
would have been covered under the contract if the covered person had
been hospitalized or confined in a skilled nursing facility as defined
S. 5037 6
in subchapter XVIII of the federal Social Security Act, 42 U.S.C. SS
1395 et seq.
WHERE HOMEMAKER SERVICES ARE PROVIDED THROUGH PRIVATE HOME AIDE
SERVICES SUCH CARE SHALL CONSIST OF ONE OR MORE OF THE FOLLOWING:
(I) SUCH AIDE SHALL HAVE MET THE STANDARDS ESTABLISHED BY THE DEPART-
MENT OF FAMILY ASSISTANCE.
(II) SUCH SERVICES ARE REIMBURSABLE THROUGH THE PARTNERSHIP FOR LONG
TERM CARE PROGRAM PURSUANT TO SECTION THREE HUNDRED SIXTY-SEVEN-F OF THE
SOCIAL SERVICES LAW.
(III) PART-TIME OR INTERMITTENT HOMEMAKER SERVICES WHICH CONSIST
PRIMARILY OF CARING FOR THE PATIENT.
S 13. Subparagraphs (B) and (C) of paragraph 3 of subsection (a) of
section 4303 of the insurance law, as amended by chapter 557 of the laws
of 2000, are amended and a new subparagraph (C-1) is added to read as
follows:
(B) Home care shall be provided by an agency [possessing] OR THROUGH A
PRIVATE HOME AIDE SERVICE PURSUANT TO THIS PARAGRAPH. WHERE HOME CARE IS
PROVIDED BY AN AGENCY SUCH AGENCY SHALL POSSESS a valid certificate of
approval or license issued pursuant to article thirty-six of the public
health law.
(C) Home care PROVIDED BY AN AGENCY shall consist of one or more of
the following:
(i) part-time or intermittent home nursing care by or under the super-
vision of a registered professional nurse (R.N.),
(ii) part-time or intermittent home health aide services which consist
primarily of caring for the patient,
(iii) physical, occupational or speech therapy if provided by the home
health service or agency, and
(iv) medical supplies, drugs and medications prescribed by a physi-
cian, and laboratory services by or on behalf of a certified home health
agency or licensed home care services agency to the extent such items
would have been covered or provided under the contract if the covered
person had been hospitalized or confined in a skilled nursing facility
as defined in subchapter XVIII of the Social Security Act, 42 U.S.C. S
1395 et seq.
(C-1) HOMEMAKER SERVICES PROVIDED THROUGH A PRIVATE HOME AIDE SERVICE
SHALL CONSIST OF ONE OR MORE OF THE FOLLOWING:
(I) SUCH AIDE SHALL HAVE MET THE STANDARDS ESTABLISHED BY THE DEPART-
MENT OF FAMILY ASSISTANCE.
(II) SUCH SERVICES ARE REIMBURSABLE THROUGH THE PARTNERSHIP FOR LONG
TERM CARE PROGRAM PURSUANT TO SECTION THREE HUNDRED SIXTY-SEVEN-F OF THE
SOCIAL SERVICES LAW.
(III) PART-TIME OR INTERMITTENT HOMEMAKER SERVICES WHICH CONSIST
PRIMARILY OF CARING FOR THE PATIENT.
S 14. Paragraph (b) of subdivision 1 of section 367-f of the social
services law, as added by chapter 659 of the laws of 1997, is amended to
read as follows:
(b) "Long term care services" shall include, but not be limited to
care, treatment, maintenance, and services: provided in a nursing facil-
ity licensed under article twenty-eight of the public health law;
provided by a home care services agency, certified home health agency or
long term home health care program, as defined in section thirty-six
hundred two of the public health law; provided by an adult day health
care program in accordance with regulations of the department of health;
[or] provided by a personal care provider licensed or regulated by any
other state or local agency; OR HOMEMAKER SERVICES THROUGH PRIVATE HOME
S. 5037 7
AIDES AS PROVIDED IN SUBDIVISION FOUR OF SECTION THIRTY-SIX HUNDRED TWO
OF THE PUBLIC HEALTH LAW; and such other services for which medical
assistance is otherwise available under this chapter which are desig-
nated as long term care services in law or regulations of the department
of health.
S 15. The department of insurance shall analyze and compare expendi-
tures, utilization rates, and utilization patterns for claims for home
care services covered by individual and group accident and health insur-
ance for the period commencing two years immediately preceding the
effective date of this act and ending two years immediately following
the effective date of this act. The department of insurance shall report
its findings to the governor, the temporary president of the senate, and
the speaker of the assembly on or before April 1, 2013.
S 16. This act shall take effect on the one hundred twentieth day
after it shall have become a law and shall apply to policies or
contracts issued, renewed, modified, altered, or amended on or after
such date.