S T A T E   O F   N E W   Y O R K
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                                   4807
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 26, 2019
                                ___________
 
 Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Consumer Protection
 
 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

 S. 4807                             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-

 S. 4807                             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.