S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    833
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by M. of A. GOTTFRIED, BARRON, CUSICK, CYMBROWITZ, DINOWITZ,
   ENGLEBRIGHT, GALEF, KIM, LUPARDO,  McMAHON,  OTIS,  SEAWRIGHT,  SIMON,
   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:
 
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD00585-02-1

 A. 833                              2
 
 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
 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

 A. 833                              3
 
 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.
   §  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 immediately; provided,  however,  that
 if the amendments made to clause (vi) of subparagraph 1 of paragraph (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.