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A00833 Summary:

COSPNSRBarron, Cusick, Cymbrowitz, Dinowitz, Englebright, Galef, Kim, Lupardo, McMahon, Otis, Seawright, Simon, Thiele, Steck, Carroll, Hevesi, Abinanti, Goodell, Colton, Forrest
Amd §§366 & 366-a, Soc Serv L
Relates to the definition of the "look-back period" for the determination of eligibility of an individual for medical assistance benefits; exempts certain assets used on the individual's behalf or for care services provided to the individual by a family member or informal caregiver.
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A00833 Actions:

01/06/2021referred to health
01/20/2021reported referred to ways and means
04/27/2021amend and recommit to ways and means
04/27/2021print number 833a
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A00833 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Gottfried
  TITLE OF BILL: An act to amend the social services law, in relation to the determi- nation of eligibility for medical assistance benefits   PURPOSE OR GENERAL IDEA OF BILL: To clarify that the 2 1/2 year lookback period for home care commencing in October 2020 would only look at transfers occurring after that date, list conditions that lessen the resulting penalty period, and enable home care to be provided under immediate need through attestation.   SUMMARY OF SPECIFIC PROVISIONS:. The bill makes corrections to Social Services Law § 366. It clarifies that the asset transfer look-back period for long term home care services applies to transfers made on and after Oct,l, 2020, so it does not have retroactive effect. It identifies caregiving actions that would otherwise be counted as disqualifying asset transfers. The bill amends Social Services Law § 366-a to provide immediately needed home care (an existing process in the Medicaid law), through the applicant attesting as to the assets, with full documentation to come later.   JUSTIFICATION: The 2020-21 enacted budget applies a two and half year "look-back" peri- od on all asset transfers made by a person (or the person's spouse) applying for Medicaid home care after October, 2020. The "look-back" period means that if an asset was sold or transferred for less than market value in the previous two and a half years, the difference between the full value and the selling price is counted as if the appli- cant still owned that asset. This can make the person ineligible for Medicaid for a period of time. New York has not until now required an asset look-back for home care. When federal law lengthened the look-back period for Medicaid coverage for nursing home care from three years to five in 2006, it was phased in over three years. Families had time to adjust their estate planning in preparation. But New York's new look-back period for home care has no phase-in period which is unfair to people who were acting under the old rules in good faith. This bill will make corrections to the new eligibility process that are consistent with existing law and principles of fairness so that adults and people with disabilities will not find themselves locked out of services that would protect them in their homes and keep them safe from unnecessary institutionalization   PRIOR LEGISLATIVE HISTORY: 2020: A.10489 - reported to Ways and Means Committee   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: Immediately.
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A00833 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                   IN ASSEMBLY
                                     January 6, 2021
          read once and referred to the Committee  on  Health  --  reported  and
          referred  to  the Committee on Ways and Means -- committee discharged,
          bill amended, ordered reprinted as amended  and  recommitted  to  said
        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:
     1    Section  1. Clause (vi) of subparagraph 1 of paragraph (e) of subdivi-
     2  sion 5 of section 366 of the social services law, as amended by  section
     3  13  of  part MM of chapter 56 of the laws of 2020, is amended to read as
     4  follows:
     5    (vi) "look-back  period"  means  the  sixty-month  period  immediately
     6  preceding the date that an institutionalized individual is both institu-
     7  tionalized  and  has applied for medical assistance, or in the case of a
     8  non-institutionalized  individual,  subject  to  federal  approval,  for
     9  transfers made on or after October first, two thousand twenty, the thir-
    10  ty-month  period  immediately  preceding the date that such non-institu-
    11  tionalized individual applies for medical assistance  coverage  of  long
    12  term care services. Nothing herein precludes a review of eligibility for
    13  retroactive authorization for medical expenses incurred during the three
    14  months prior to the month of application for medical assistance.
    15    §  2.  Clauses  (iii)  and  (iv) of subparagraph 4 of paragraph (e) of
    16  subdivision 5 of section 366 of the social services  law,  as  added  by
    17  section  26-a  of part C of chapter 109 of the laws of 2006, are amended
    18  and a new clause (v) is added to read as follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 833--A                           2
     1    (iii) a satisfactory showing is made that: (A) the individual  or  the
     2  individual's  spouse  intended  to  dispose of the assets either at fair
     3  market value, or for other valuable consideration;  or  (B)  the  assets
     4  were  transferred  exclusively  for  a purpose other than to qualify for
     5  medical  assistance;  or  (C)  all assets transferred for less than fair
     6  market value have been returned to the individual or used on  the  indi-
     7  vidual's behalf; or
     8    (iv)  denial  of  eligibility would cause an undue hardship, such that
     9  application of the transfer of assets provision would deprive the  indi-
    10  vidual  of  medical care such that the individual's health or life would
    11  be endangered, or would deprive the individual of food, clothing,  shel-
    12  ter,  or  other  necessities  of  life. The commissioner of health shall
    13  develop a hardship waiver process which shall include a  timely  process
    14  for  determining  whether an undue hardship waiver will be granted and a
    15  timely process under which an adverse determination can be appealed. The
    16  commissioner of health shall provide notice of the hardship waiver proc-
    17  ess in writing to those individuals who are required to comply with  the
    18  transfer  of  assets provision under this section. If such an individual
    19  is an institutionalized individual, the facility in which he or  she  is
    20  residing shall be permitted to file an undue hardship waiver application
    21  on  behalf  of such individual with the consent of the individual or the
    22  personal representative of the individual[.]; or
    23    (v) the transfer was to a family member or informal  caregiver  before
    24  the  current  period  of institutional status, or before the application
    25  for Medicaid for non-institutional long-term care services, and all  the
    26  following conditions are met:
    27    (A) the transfer is in exchange for care services the family member or
    28  informal caregiver provided to the client or the client's spouse;
    29    (B)  the  client  or the client's spouse had a documented need for the
    30  care services provided by the family member or informal caregiver;
    31    (C) the fair market value of the asset transferred  is  comparable  to
    32  the fair market value of the care services provided; and
    33    (D)  the  time for which care services are claimed is reasonable based
    34  on the kind of services provided.
    35    § 3. Subparagraph 5 of paragraph (e) of subdivision 5 of  section  366
    36  of  the social services law, as added by section 26-a of part C of chap-
    37  ter 109 of the laws of 2006, is amended to read as follows:
    38    (5) Any transfer made by an  individual  or  the  individual's  spouse
    39  under  subparagraph three of this paragraph shall cause the person to be
    40  ineligible for services for a period  equal  to  the  total,  cumulative
    41  uncompensated  value of all assets transferred during or after the look-
    42  back period, divided by the average monthly costs  of  nursing  facility
    43  services provided to a private patient for a given period of time at the
    44  time  of  application,  as determined pursuant to the regulations of the
    45  department. For purposes of this subparagraph, the average monthly costs
    46  of nursing facility services to a private patient for a given period  of
    47  time  at  the  time  of  application shall be presumed to be one hundred
    48  twenty percent of the average medical assistance rate of payment  as  of
    49  the  first day of January of each year for nursing facilities within the
    50  region where the applicant resides, as established pursuant to paragraph
    51  (b) of subdivision sixteen of section twenty-eight  hundred  seven-c  of
    52  the public health law. The period of ineligibility shall begin the first
    53  day  of  a  month during or after which assets have been transferred for
    54  less than fair market value, or, (i) for institutionalized  individuals,
    55  the  first  day  the otherwise eligible individual is receiving services
    56  for which medical assistance coverage would be  available  based  on  an

        A. 833--A                           3
     1  approved  application  for  such care but for the provisions of subpara-
     2  graph three of this paragraph, whichever is later, and  which  does  not
     3  occur  in  any  other  periods of ineligibility under this paragraph, or
     4  (ii)  for non-institutionalized individuals, the first day the otherwise
     5  eligible individual is functionally  eligible  for  services  for  which
     6  medical  assistance  would be available based on an approved application
     7  for such care but for the provisions of subparagraph three of this para-
     8  graph, whichever is later, and which does not occur in any other periods
     9  of ineligibility under this paragraph.
    10    § 4. Subdivision 12 of section 366-a of the social  services  law,  as
    11  added  by  section  36-c of part B of chapter 57 of the laws of 2015, is
    12  amended to read as follows:
    13    12. The commissioner shall develop expedited procedures for  determin-
    14  ing  medical assistance eligibility for any medical assistance applicant
    15  with an immediate need for personal care or consumer  directed  personal
    16  assistance  services  pursuant  to  paragraph  (e) of subdivision two of
    17  section three hundred  sixty-five-a  of  this  title  or  section  three
    18  hundred  sixty-five-f of this title, respectively. Such procedures shall
    19  require that a final eligibility determination be made within seven days
    20  of the date of a [complete] medical assistance application that shall be
    21  complete, except that a non-institutionalized individual  applicant  may
    22  attest that no transfers of assets were made within the look-back period
    23  under subdivision five of section three hundred sixty-six of this title;
    24  provided  the  non-institutionalized  individual  applicant shall submit
    25  complete documentation of assets  during  the  look-back  period  within
    26  thirty days of the date the application was filed.
    27    § 5. This act shall take effect immediately.
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