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A08930 Summary:

BILL NOA08930
 
SAME ASSAME AS S01245
 
SPONSORBronson
 
COSPNSRGallagher, Shimsky, Epstein, Glick, Tapia, Ardila, Lucas, Jacobson
 
MLTSPNSR
 
Add §597-a, amd §597, Lab L
 
Waives Unemployment Pandemic Benefits repayments in whole or in part if the payment of such pandemic unemployment assistance was without fault on the part of the claimant and such repayment would be contrary to equity and good conscience.
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A08930 Actions:

BILL NOA08930
 
01/30/2024referred to labor
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A08930 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8930
 
SPONSOR: Bronson
  TITLE OF BILL: An act to amend the labor law, in relation to waiving repayment of unem- ployment pandemic benefits under certain circumstances   PURPOSE OR GENERAL IDEA OF BILL: To provide financial relief from the need to repay pandemic unemployment assistance overpayments that were received through no fault of the claimant.   SUMMARY OF PROVISIONS: Section one of the bill adds a new section, 597-a, to the Labor Law to provide the Commissioner of Labor the authority to waive pandemic unem- ployment assistance overpayments. This section would provide for defi- nitions of relevant terms and outline the standards and process for waiving such overpayments. ' Section two of the bill would provide a definition for willful for Department of Labor's evaluation of willful false statements made by claimants. Section three would establish the effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): N/A   JUSTIFICATION: As New Yorkers continue to navigate the economic crisis brought on by COVID-19 and the resulting high levels of unemployment, several benefi- ciaries are being notified by the Department of Labor that they, were overpaid and would need to repay some of their benefits to the Depart- ment of Labor. These claimants received such payments through no fraud or fault on their part, and were unaware that they were not entitled to receive the benefits that they had. These people have already spent their unemployment payments to pay rent, pay utility bills, and to purchase food for their families. These claimants are now being asked by the Department to return some of the benefits they received, with some New Yorkers owing more than $10,000. The Federal Government passed legislation in December of 2020 to provide every State with the authority to waive benefit overpayment amounts. This legislation would require that the Department of Labor waive these repayments for certain claimants, and provide financial relief to thou- sands of New Yorkers who through no fault of their own owe the State money for overpayments made by the Department of Labor.   LEGISLATIVE HISTORY: 2023-2024: A489 - Referred to Labor; enacting clause stricken 2021-2022: A7511 - Ordered to third reading   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: This act shall take effect immediately and shall apply to all pandemic unemployment assistance repayments assessed on or after March 27, 2020.
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A08930 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8930
 
                   IN ASSEMBLY
 
                                    January 30, 2024
                                       ___________
 
        Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
          tee on Labor
 
        AN ACT to amend the labor law, in relation to waiving repayment of unem-
          ployment pandemic benefits under certain circumstances
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The labor law is amended by adding a new section 597-a to
     2  read as follows:
     3    § 597-a. Waiver authority for certain overpayments of  pandemic  unem-
     4  ployment assistance. 1. Definitions. As used in this section:
     5    (a)  "Unemployment pandemic benefits" or "UPB" means federal unemploy-
     6  ment insurance or assistance payments including  extended  benefits  and
     7  the  first week of regular unemployment insurance made during the period
     8  of January twenty-seventh, two thousand twenty through September  sixth,
     9  two thousand twenty-one.
    10    (b)  "Without  fault" means the claimant has not knowingly supplied or
    11  omitted false information, with the intent to  receive  benefits,  which
    12  directly  resulted  in  the department issuing UPB to which the claimant
    13  was not entitled.
    14    (c) "Blanket waiver" means a  waiver  authorized  under  federal  law,
    15  including but not limited to UIPL 20-21 and UIPL 20-21, Change 1 and any
    16  and all subsequent waivers that the federal government authorizes states
    17  to implement.
    18    (d)  "Categorical  waivers"  means  a  waiver for which the department
    19  receives approval after requesting  permission  to  implement  from  the
    20  Federal Department of Labor and/or appropriate federal agency in accord-
    21  ance with UIPL 20-21, Change 1, Attachment 2. Upon approval, a categori-
    22  cal waiver becomes a blanket waiver.
    23    (e)  "Individual waiver" means a waiver made available to every claim-
    24  ant who has not been approved for a blanket waiver.
    25    (f) "Final determination date" means the date thirty days after appeal
    26  rights have been exhausted or abandoned.
    27    2. Waiver of certain repayments. The department shall review  all  UPB
    28  overpayments  to  determine  eligibility  for waivers at the time of the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02796-01-3

        A. 8930                             2
 
     1  overpayment determination and shall review  all  previously  issued  UPB
     2  overpayment  determinations  retroactively  to determine eligibility for
     3  waivers as described in paragraphs (a), (b) and (c) of this subdivision.
     4  The  department  must complete its review of previously determined over-
     5  payments for waiver eligibility within one hundred twenty  days  of  the
     6  effective  date of this section. Prior to denial of a blanket waiver, as
     7  described in paragraphs (a) and (b) of this subdivision, the  department
     8  must  assess all UPB overpayments to determine if claimants are eligible
     9  for state unemployment insurance.    The  department  shall  assess  and
    10  approve  any  subsequent  waivers  not  previously  authorized which the
    11  federal government authorizes states to  implement.  There  shall  be  a
    12  presumption that claimants are eligible for UPB waivers absent clear and
    13  convincing evidence to the contrary.
    14    (a)  The  department  shall  assess  and  approve blanket waivers. The
    15  department shall proactively identify individuals eligible for a blanket
    16  waiver including those who have previously been denied  waivers.  Notice
    17  of  a claimant's approval for a blanket waiver must be provided pursuant
    18  to subdivision three of this section within fourteen days of the depart-
    19  ment's decision to approve the blanket waiver. To the  extent  that  the
    20  department  has collected benefits for which an overpayment was assessed
    21  which are eligible for a blanket  waiver,  the  department  must  refund
    22  benefits to claimants within thirty days of waiver approval.
    23    (b)  The department shall apply for approval of categorical waivers as
    24  listed in this subdivision within thirty days of the effective  date  of
    25  this section. Upon approval of a categorical waiver, such approved waiv-
    26  er  shall  be considered to be a blanket waiver and the requirements for
    27  blanket waivers as listed in paragraph (a)  of  this  subdivision  shall
    28  apply.  The department shall request approval for the following categor-
    29  ical waivers:
    30    (i)  all overpayments assessed against educational workers pursuant to
    31  subdivisions ten and eleven of section five hundred ninety of this title
    32  during calendar year two thousand twenty;
    33    (ii) all overpayments assessed because of alleged ineligibility due to
    34  immigration status;
    35    (iii) all  overpayments  assessed  against  the  claimant  where  they
    36  received correspondence, forms, or any other documentation in a language
    37  that  was  not  their  own  or  in a manner that was inaccessible to the
    38  claimant; or due to other similar difficulties (e.g., education, litera-
    39  cy, and/or language barriers)  in  understanding  what  information  the
    40  state needed from the claimant to properly determine eligibility;
    41    (iv) all overpayments assessed because the claimant filed in the wrong
    42  state or there was an incorrectly adjudicated interstate claim; and
    43    (v)  all  overpayments assessed against claimants where receipt of UPB
    44  was without fault on the part of the claimant.
    45    (c) If an individual is not approved for a blanket waiver, the depart-
    46  ment must assess each claimant's eligibility for a  waiver  individually
    47  at  the  time the overpayment is established. The department shall waive
    48  such overpayment repayment if it is determined that the payment of  such
    49  UPB  was  without  fault on the part of such claimant and such repayment
    50  would be contrary to equity  and  good  conscience.  There  shall  be  a
    51  presumption  that  the  claimant  is  without  fault  where the claimant
    52  provided incorrect information or  failed  to  provide  information  and
    53  documentation in the following situations:
    54    (i) the department provided conflicting, changing, or confusing infor-
    55  mation or instructions;

        A. 8930                             3

     1    (ii)  the  department took more than six months to implement a federal
     2  law regarding proof of eligibility from claimants;
     3    (iii)  the  claimant  was unable to reach the department despite their
     4  best efforts to inquire or clarify information the individual needed  to
     5  provide, due to language, education, literacy, disability or other simi-
     6  lar barriers;
     7    (iv) the claimant was unable to understand the department's notices or
     8  directives  due  to  language,  education,  literacy disability or other
     9  similar barriers;
    10    (v) the claimant chose a reason for separation which is legally incor-
    11  rect; or
    12    (vi) the claimant had assistance in filing  a  claim,  certifying,  or
    13  otherwise  responding  to  the department where the claimant's assistant
    14  did not confirm required information with the claimant or  misunderstood
    15  such information provided by the claimant.
    16    (d)  There  shall  be a presumption that the payment of UPB is without
    17  fault if the overpayment was due to department error or mistake  or  the
    18  employer  provided  incorrect  or  untimely  information. Receipt of the
    19  Unemployment Insurance Claimant Handbook shall not create a  presumption
    20  that  the  claimant was on notice of its contents and such receipt shall
    21  not be used against the claimant on points of fact or law.
    22    (e) For purposes of this section it shall be considered to be "contra-
    23  ry to equity and good conscience" where any one or a combination of  the
    24  following apply:
    25    (i) recovery would cause financial hardship to the person from whom it
    26  is sought;
    27    (ii)  the  recipient  of the overpayment can show, regardless of their
    28  financial situation, that repayment would cause  them  to  relinquish  a
    29  valuable  right or change their position for the worse including but not
    30  limited to signing a lease, taking out a loan, or passing  up  state  or
    31  federal assistance in reliance on receipt of UPB;
    32    (iii)  where the individual or their household is in receipt of Social
    33  Security Income, Supplemental Security Income, Social Security Disabili-
    34  ty, Medicaid, Medicare, free or  reduced  public  school  lunch,  Family
    35  Investment  Program,  temporary assistance, Supplement Nutrition Assist-
    36  ance Program benefits (SNAP), nutrition benefits provided as part of the
    37  Special Supplemental Nutrition Program for Women, Infants  and  Children
    38  (WIC),  Home  Energy  Assistance  Program  benefits, Senior Citizen Rent
    39  Increase Exemption, Disability Rent Increase Exemption,  rental  subsidy
    40  pursuant to Section 8 of the Housing Act of 1937 and/or state law, or is
    41  at  or  below four hundred percent of the federal poverty guidelines, or
    42  is living in project-based  subsidized  housing  and  any  substantially
    43  equivalent successor program to the aforementioned benefits programs;
    44    (iv) where the individual used the unemployment benefits to meet their
    45  ordinary  living  expenses  including  but  not  limited  to food, rent,
    46  medical costs and/or insurance, dental bills  and/or  insurance,  school
    47  loans, school fees, utilities, childcare, mortgage payments, transporta-
    48  tion,  purchase  or maintenance of a car or equipment needed for employ-
    49  ment or self-employment, or operating expenses for self-employment;
    50    (v) where the department made programming, technological or  automated
    51  system  errors  or where individuals relied upon the department's publi-
    52  cized information later determined to be erroneous;
    53    (vi) where representatives and/or agents of  the  department  provided
    54  information, upon which individuals relied or omitted information, which
    55  resulted in an overpayment;

        A. 8930                             4

     1    (vii)  where  the  department failed to determine a non-monetary issue
     2  within twenty-one days after the department had notice of the issue;
     3    (viii) where the department reversed a decision regarding a claimant's
     4  eligibility more than thirty days after the initial determination;
     5    (ix)  where the department failed to communicate with an employer, the
     6  claimant, and/or other relevant parties including  but  not  limited  to
     7  federal,  state  or  territorial  government entities, prior to awarding
     8  unemployment benefits;
     9    (x) where the department failed to communicate with the claimant in  a
    10  manner or format inaccessible to the individual;
    11    (xi)  where  a  decision  on a hearing that resulted in an overpayment
    12  being assessed was issued more than thirty days after  the  first  unem-
    13  ployment benefit payment;
    14    (xii)  where the overpayment is based on unemployment claims that were
    15  opened during a period when the department failed to send notices within
    16  thirty days to employers of claimants having applied for benefits;
    17    (xiii) where there is any other reason for which recovery of the over-
    18  payment would be against equity and good conscience  under  the  circum-
    19  stances;
    20    (xiv) where it would be unfair to require repayment;
    21    (xv)  where  requiring  repayment  now would undermine an individual's
    22  financial stability and the purposes for which the benefits  were  paid;
    23  and/or
    24    (xvi) where recovery would be unconscionable under the circumstances.
    25    (f)  The  department shall provide claimants, who have previously been
    26  denied waivers with applications for  individual  waivers  within  sixty
    27  days  of  the  effective  date  of  this section. To the extent that the
    28  department has collected benefits for which an overpayment was  assessed
    29  which  are eligible for an individual waiver, the department must refund
    30  benefits to claimants within thirty days of waiver approval.
    31    3. (a) The department shall notify each claimant with  an  overpayment
    32  of the following:
    33    (i)  the  total amount of such overpayment and the cause of such over-
    34  payment;
    35    (ii) the amount of the overpayment that is waived and the  reason  why
    36  some or all of the overpayment was not waived;
    37    (iii) the availability of a ten-year period to repay the overpayment;
    38    (iv)  the  means  by  which the commissioner is entitled to collect or
    39  recover such overpayment;
    40    (v) an explanation of the claimant's right  to  appeal  such  determi-
    41  nation  or  decision in accordance with the provisions of this title and
    42  any rules and regulations promulgated thereunder;
    43    (vi) an explanation of the standards by which an  overpayment  can  be
    44  waived as set forth in this section; and
    45    (vii)  the  process  by  which  the claimant may request and obtain an
    46  individual waiver of recovery of such overpayment.
    47    (b) A copy of the application for individual waivers must be sent with
    48  the notification described herein.
    49    (c) A claimant who is dissatisfied with a  determination  regarding  a
    50  waiver  may,  within  sixty days after receipt of notice of the determi-
    51  nation, request a hearing. Overpayment  claimants  shall  have  all  the
    52  appeals  rights  provided  by  title  eight  of this article except that
    53  referees may extend the time fixed for requesting a  hearing  upon  good
    54  cause shown.
    55    4. The department shall develop and implement a process, within thirty
    56  days  of  the  effective  date  of  this section, by which claimants may

        A. 8930                             5

     1  request and obtain an individual waiver application by phone, fax, mail,
     2  or through the department's two-way communication system. All  notifica-
     3  tions shall be translated into the ten most commonly spoken languages in
     4  New  York  state.  Any  notice  not  fully  translated into one of these
     5  languages must be accompanied by a notice  informing  the  recipient  of
     6  where  they may seek translation and other assistance as provided by the
     7  department.
     8    5. Any funds recouped or repaid prior to the granting of these waivers
     9  shall be returned to the individual within thirty  days  of  the  waiver
    10  being granted.
    11    6.  The  department shall ensure that no overpayments are or have been
    12  established based on a redetermination more  than  one  year  after  the
    13  first date for which benefits are paid.
    14    7. (a) The department shall not pursue or continue collection activity
    15  prior  to  a  final  determination  regarding the overpayment and that a
    16  claimant is ineligible for any waiver.
    17    (b) Where an overpayment waiver is denied, claimants shall have up  to
    18  ten  years  to  repay  overpayments.  Upon  a  showing of the claimant's
    19  inability to repay, the ten-year period shall be extended to an  indefi-
    20  nite  period  as long as the claimant can make a minimum payment of five
    21  dollars per month. Offsets shall be limited to three years.
    22    8. The department shall report publicly on its website on a  quarterly
    23  basis   the  following  information  by  race,  gender,  ethnicity,  and
    24  language:  the number of overpayment notifications it sent to claimants,
    25  the number of waiver requests received, the number  of  waiver  requests
    26  granted,  the  number  of  waiver  requests  denied  and, if denied, the
    27  reasons for denying each waiver request.
    28    § 2. Subdivision 4 of section 597 of the  labor  law,  as  amended  by
    29  chapter  61  of  the laws of 1998, is amended and a new subdivision 5 is
    30  added to read as follows:
    31    4. Effect of review. Whenever a new determination in  accordance  with
    32  the  preceding subdivision or a decision by a referee, the appeal board,
    33  or a court results in  a  decrease  or  denial  of  benefits  previously
    34  allowed,  such  new  determination or decision, unless it shall be based
    35  upon a retroactive payment of remuneration, shall not affect the  rights
    36  to  any  benefits already paid under the authority of the prior determi-
    37  nation or decision provided they were accepted by the claimant  in  good
    38  faith  and  the claimant did not make [any] a willful false statement or
    39  representation and did not [wilfully] willfully  conceal  any  pertinent
    40  fact in connection with his or her claim for benefits.
    41    5.  The  term  "willful"  as it is used in this section shall mean the
    42  claimant intentionally and deliberately supplied or omitted false infor-
    43  mation which directly resulted in the  department  issuing  benefits  to
    44  which the claimant knew they were not entitled.
    45    §  3.  This  act  shall take effect immediately and shall apply to all
    46  pandemic unemployment assistance repayments assessed on or  after  March
    47  27, 2020.
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