S T A T E O F N E W Y O R K
________________________________________________________________________
8337
I N S E N A T E
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:
Section 1. Clause (vi) of subparagraph 1 of paragraph (e) of subdivi-
sion 5 of section 366 of the social services law, as amended by section
13 of part MM of chapter 56 of the laws of 2020, is amended to read as
follows:
(vi) "look-back period" means the sixty-month period immediately
preceding the date that an institutionalized individual is both institu-
tionalized and has applied for medical assistance, or in the case of a
non-institutionalized individual, subject to federal approval, FOR
TRANSFERS MADE ON OR AFTER OCTOBER FIRST, TWO THOUSAND TWENTY, the thir-
ty-month period immediately preceding the date that such non-institu-
tionalized individual applies for medical assistance coverage of long
term care services. Nothing herein precludes a review of eligibility for
retroactive authorization for medical expenses incurred during the three
months prior to the month of application for medical assistance.
§ 2. Clauses (iii) and (iv) of subparagraph 4 of paragraph (e) of
subdivision 5 of section 366 of the social services law, as added by
section 26-a of part C of chapter 109 of the laws of 2006, are amended
and a new clause (v) is added to read as follows:
(iii) a satisfactory showing is made that: (A) the individual or the
individual's spouse intended to dispose of the assets either at fair
market value, or for other valuable consideration; or (B) the assets
were transferred exclusively for a purpose other than to qualify for
medical assistance; or (C) all assets transferred for less than fair
market value have been returned to the individual OR USED ON THE INDI-
VIDUAL'S BEHALF; or
(iv) denial of eligibility would cause an undue hardship, such that
application of the transfer of assets provision would deprive the indi-
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
be endangered, or would deprive the individual of food, clothing, shel-
ter, or other necessities of life. The commissioner of health shall
develop a hardship waiver process which shall include a timely process
for determining whether an undue hardship waiver will be granted and a
timely process under which an adverse determination can be appealed. The
commissioner of health shall provide notice of the hardship waiver proc-
ess in writing to those individuals who are required to comply with the
transfer of assets provision under this section. If such an individual
is an institutionalized individual, the facility in which he or she is
residing shall be permitted to file an undue hardship waiver application
on behalf of such individual with the consent of the individual or the
personal representative of the individual[.]; OR
(V) THE TRANSFER WAS TO A FAMILY MEMBER OR INFORMAL CAREGIVER BEFORE
THE CURRENT PERIOD OF INSTITUTIONAL STATUS, OR BEFORE THE APPLICATION
FOR MEDICAID FOR NON-INSTITUTIONAL LONG-TERM CARE SERVICES, AND ALL THE
FOLLOWING CONDITIONS ARE MET:
(A) THE TRANSFER IS IN EXCHANGE FOR CARE SERVICES THE FAMILY MEMBER OR
INFORMAL CAREGIVER PROVIDED TO THE CLIENT OR THE CLIENT'S SPOUSE;
(B) THE CLIENT OR THE CLIENT'S SPOUSE HAD A DOCUMENTED NEED FOR THE
CARE SERVICES PROVIDED BY THE FAMILY MEMBER OR INFORMAL CAREGIVER;
(C) THE FAIR MARKET VALUE OF THE ASSET TRANSFERRED IS COMPARABLE TO
THE FAIR MARKET VALUE OF THE CARE SERVICES PROVIDED; AND
(D) THE TIME FOR WHICH CARE SERVICES ARE CLAIMED IS REASONABLE BASED
ON THE KIND OF SERVICES PROVIDED.
§ 3. Subparagraph 5 of paragraph (e) of subdivision 5 of section 366
of the social services law, as added by section 26-a of part C of chap-
ter 109 of the laws of 2006, is amended to read as follows:
(5) Any transfer made by an individual or the individual's spouse
under subparagraph three of this paragraph shall cause the person to be
ineligible for services for a period equal to the total, cumulative
uncompensated value of all assets transferred during or after the look-
back period, divided by the average monthly costs of nursing facility
services provided to a private patient for a given period of time at the
time of application, as determined pursuant to the regulations of the
department. For purposes of this subparagraph, the average monthly costs
of nursing facility services to a private patient for a given period of
time at the time of application shall be presumed to be one hundred
twenty percent of the average medical assistance rate of payment as of
the first day of January of each year for nursing facilities within the
region where the applicant resides, as established pursuant to paragraph
(b) of subdivision sixteen of section twenty-eight hundred seven-c of
the public health law. The period of ineligibility shall begin the first
day of a month during or after which assets have been transferred for
less than fair market value, or, (I) FOR INSTITUTIONALIZED INDIVIDUALS,
the first day the otherwise eligible individual is receiving services
for which medical assistance coverage would be available based on an
approved application for such care but for the provisions of subpara-
graph three of this paragraph, whichever is later, and which does not
occur in any other periods of ineligibility under this paragraph, OR
(II) FOR NON-INSTITUTIONALIZED INDIVIDUALS, THE FIRST DAY THE OTHERWISE
ELIGIBLE INDIVIDUAL IS FUNCTIONALLY ELIGIBLE FOR SERVICES FOR WHICH
MEDICAL ASSISTANCE WOULD BE AVAILABLE BASED ON AN APPROVED APPLICATION
FOR SUCH CARE BUT FOR THE PROVISIONS OF SUBPARAGRAPH THREE OF THIS PARA-
GRAPH, WHICHEVER IS LATER, AND WHICH DOES NOT OCCUR IN ANY OTHER PERIODS
OF INELIGIBILITY UNDER THIS PARAGRAPH.
S. 8337 3
§ 4. Subdivision 12 of section 366-a of the social services law, as
added by section 36-c of part B of chapter 57 of the laws of 2015, is
amended to read as follows:
12. The commissioner shall develop expedited procedures for determin-
ing medical assistance eligibility for any medical assistance applicant
with an immediate need for personal care or consumer directed personal
assistance services pursuant to paragraph (e) of subdivision two of
section three hundred sixty-five-a of this title or section three
hundred sixty-five-f of this title, respectively. Such procedures shall
require that a final eligibility determination be made within seven days
of the date of a [complete] medical assistance application THAT SHALL BE
COMPLETE, EXCEPT THAT A NON-INSTITUTIONALIZED INDIVIDUAL APPLICANT MAY
ATTEST THAT NO TRANSFERS OF ASSETS WERE MADE WITHIN THE LOOK-BACK PERIOD
UNDER SUBDIVISION FIVE OF SECTION THREE HUNDRED SIXTY-SIX OF THIS TITLE;
PROVIDED THE NON-INSTITUTIONALIZED INDIVIDUAL APPLICANT SHALL SUBMIT
COMPLETE DOCUMENTATION OF ASSETS DURING THE LOOK-BACK PERIOD WITHIN
THIRTY DAYS OF THE DATE THE APPLICATION WAS FILED.
§ 5. This act shall take effect October 1, 2020; provided, however,
that if the amendments made to clause (vi) of subparagraph 1 of para-
graph (e) of subdivision 5 of section 366 of the social services law by
section 13 of part MM of chapter 56 of the laws of 2020 shall not have
taken effect on or before such date then section one of this act shall
take effect on the same date and in the same manner as such chapter of
the laws of 2020 takes effect.
