Legislative Round-Up: 2009-2010 Session

November 19, 2010

Author: Don Friedman

Another tempestuous session of the New York State Legislature recently concluded.  It was a session often characterized by political stalemate and dominated by the State’s budget woes. Therefore it is not surprising that there was considerable frustration within the community of advocates for low-income New Yorkers.  On the other hand, there were some significant accomplishments and successful opposition to harmful legislative proposals. The compilation that follows covers an array of issue areas, from Child Care to Foreclosure and Housing.  It includes legislation with which Empire Justice staff were actively involved, as well as other items of interest to advocates for low-income clients.

Note:  Domestic violence legislative activity for the 2009-2010 session is reviewed by Amy Schwartz in the summer 2010 Legal Services Journal.  http://www.empirejustice.org/policy-advocacy/legislative-updates/2010-domestic-violence.html

CHILD CARE

Child Care - Zoning Protections:  A8827a (Scarborough)/S3895b (Montgomery)

This was a New York State Office of Children & Family Services (OCFS) program bill amending the Social Services Law that inadvertently removed zoning rules protecting family child care providers in suburban and rural New York State.  Empire Justice helped to get the appropriate language restored, and also to achieve a compromise on group family child care ratios. 

Activity:  Signed by Governor on June 15, 2010, chapter 117. Effective immediately.

Child Care - Subsidies:  S8137a (Montgomery); A11532a (Peoples-Stokes)

This bill would require that counties give OCFS 90 days notice of a change in eligibility or of an increase in co-payments, that OCFS immediately post this information to their web site, and that within 30 days after that  OCFS notify providers in the affected counties with a request that providers notify the families they serve. 

Activity:  The bill was referred to the Children and Families Committees in each house.

CHILD SUPPORT

Child Support - Low-Income Support Obligations - A8952 (Weinstein)/S5570a (Hassell-Thompson)

The “Low Income Support Obligation and Performance Improvement Act” modifies the Family Court Act regarding the modification and enforcement procedures governing child support.  Two particular successes Empire Justice worked on were:

1. A provision repealing Knights v. Knights, a 1988 Court of Appeals case that prohibited incarcerated individuals from obtaining downward modifications of child support orders on the theory that their inability to pay was based on their bad acts.
2. An amendment to the FCA which permits family courts to refer respondents in support proceedings to various employment-related activities.  The inserted provision exempts SSI and SSD recipients from this provision.

Activity:  Passed both houses, signed by Governor on July 15, 2010, chapter 182. Effective 90 days after signing (with some qualifying language).

CIVIL PROCEDURE

Rules of Civil Procedure - Attorney’s Fees:  S4534 (Sampson)/A7395 (Schimminger)

This bill would expand the definition of "prevailing party" for purposes of counsel fees to include parties whose lawsuit was a catalyst for change by the opposing party.  The purpose was to overcome court cases that denied fees where cases were settled prior to there being a final judgment. 

Activity:  Went to the floor of the Senate, no final vote; passed the Assembly.

Rules of Civil Procedure - Class Actions - A5019 (Rivera)/S5394 (Schneiderman)

This bill would amend the CPLR to mandate that a party cannot be denied class action status on the basis that government operations are involved.  This would override court cases that have ruled that class actions are not necessary where the defendant is a governmental agency, which presumably would apply the ruling of the court in all similar cases. 

Activity:  Passed the Assembly; referred to the Senate Codes Committee.

CONSUMER

Homeowners Insurance - Data Reporting:  A2861  (Gantt)

This bill would amend the insurance law to require residential insurance providers to publish statistical reports concerning where they are writing, cancelling, and not renewing policies. 

Activity: Referred to the Assembly Insurance Committee, no movement there.

Homeowners’ Insurance – Serving the Underserved - A6773 (Rivera P.)/S3997 (Espada) 

This bill would create the insurer fund for underserved neighborhood/rural area development corporation, guaranteeing that insurers must spend a portion of their assets in underserved areas of the state. 

Activity:  Referred to the insurance committees in both houses. 

Rent-to-Own - A3083e (Pheffer)/S557c (Adams)

This bill amends the Personal Property Law’s rent-to-own statute.  Although it sets forth new requirements in terms of the information stores must provide to rent-to-own consumers, it also in essence legalizes predatory rent-to-own practices in which consumers often pay 3-4 times the value of a product.  An estimated 80% of consumers default before completing their payments allowing companies to “re-rent” the same item at the same high price. 

Activity:  Passed both houses, signed into law on 7/30/10, effective 6 months after signing; Chapter 309, Approval Memo 15.

Debt Collection Practices - A3532a (Gianaris)/S2458a (Sampson)

This bill would create a private right of action for improper debt collection procedures, and would allow plaintiffs to recover punitive damages and reasonable attorneys' fees. 

Activity:  Passed Assembly, referred to Senate Rules Committee.

Small Loans by Check Cashers - A10919 (Towns)/S7043 (Klein)

This bill would allow check cashers to make short-term small dollar loans outside usury caps; similar to payday lending. 

Activity:  Referred to Assembly Banking Committee; moved to third reading in the Senate.

Bankruptcy - Exemptions A8735 (Weinstein)/S7034 (Schneiderman)

This bill would increase NYS exemptions for debt collection and bankruptcy protection. 

Activity:  Passed Assembly and Senate, awaiting action by Governor.

Consumer Credit Fairness Act A7558a (Weinstein)/S4398a (Schneiderman)

The “Consumer Credit Fairness Act” establishes (1) a 3 year statute of limitations for actions arising out of consumer credit transactions, (2) a notice of lawsuit which must be mailed to the defendant in such actions, (3) certain requirements for complaints in such actions and (4) provides for arbitration. 

Activity:  Passed the Assembly; referred to Senate Rules Committee. 

Licensing and Bonding of Debt Collectors A3926d (Pheffer)/S7071a (Schneiderman)

This bill would require debt collection agencies to be licensed by the state, would require bonding and allow for penalties. 

Activity:  Passed the Assembly; referred to Senate Rules Committee.

GOVERNMENT BENEFITS (not including Health Benefits)

Food Stamps (Supplemental Nutrition Assistance Program, or SNAP) - Finger Imaging A1681 (Wright)/S6291 (Espada)

This bill would eliminate the finger imaging requirement for people applying for Food Stamps but not public assistance. 

Activity:  Passed the Senate, referred to the Ways & Means Committee in the Assembly.

Food Stamps - Federal Waivers S2369 (Krueger)/A4169 (Cook)

This would require NYS Office of Temporary and Disability Assistance (OTDA) to apply for any available federal waivers under the Food Stamp (SNAP) rules that would increase eligibility.  Among other things, this would require New York to opt in to the waiver of the rule limiting Food Stamps to ABAWDs (able-bodied adults without dependents). 

Activity:  Referred to the Social Services Committees in each house.

Disability Advocacy Project - Budget Bill

Advocacy to protect continued funding for the Disability Assistance Project (DAP), had mixed results.  There was ultimately a 10% reduction in the base DAP funding.  In addition, while the Governor proposed a complete elimination of DAP-TANF (Temporary Assistance to Needy Families) funding, the final budget restored 50% of the funding.

Public Assistance - Access to Education A1827a (Wright)/S5846b (Montgomery) [these bills are identical but not listed as “same as”]

This bill would add four-year colleges to the list of allowable work activities for PA recipients, and require districts to allow recipients to engage in their preferred activity where appropriate. 

Activity: Passed Assembly; reported out of Senate Social Services, held in Senate Finance.

Public Assistance - Treating Physician Rule S5547 (Dilan) /A1417a (Wright)

This bill would require that, in determining employability for public assistance recipients, special consideration be given to the opinion of the individual’s treating health care practitioner. 

Activity:  Passed Assembly; referred to Senate Social Services Committee.

Public Assistance – Automobile Resource Rule A1516 (Wright)/S6680 (Krueger)

This bill would amend the Social Services Law to provide a uniform allowable automobile value of $9300 when determining public assistance eligibility. Currently only those working or looking for work have that resource limit; others, including the disabled, have a resource limit of $4650. 

Activity: Passed both houses but vetoed by the Governor on August 30, 2010.  Veto message 6793.

Public Assistance - Gross Income Test S1021 (Kruger)  [Similar bill: A1296 (Wright)]

S1021 would have repealed the threshold test for public assistance eligibility under which gross income must not exceed 185% of the household’s standard of need.  A1296 would have repealed the 185% test, but would have also raised the amount of disregarded earned income (for certain households) to 67%. 

Activity:  Neither bill advanced beyond their respective Social Services Committees.

Public Assistance - Liens S4140 (Krueger)/A1406 (Wright)

This bill would eliminate the ability of local social services districts to take a lien or mortgage against a home owned by an applicant or recipient of public assistance.  

Activity:  Reported out of the Senate Children and Families Committee and was sent to the Senate Finance Committee.  Reported out of the Assembly Social Services Committee and was sent to the Assembly Ways and Means Committee.

Public Assistance - Workfare A1456 (Wright)/S4544 (Squadron)

This bill would amend the Social Services Law to require that local districts credit the minimum wage value of a client’s workfare participation when recovering properly paid public assistance.  This would apply, for example, to lottery intercepts, lawsuit proceeds, windfalls such as inheritances and retroactive Supplemental Security Income awards.

Activity:  Reported out of the Senate Social Services Committee, sent to Senate Finance; referred to the Assembly Labor Committee.

HEALTH AND HEALTH BENEFITS

Health Care Decision Making A7729d (Gottfried)/S3164b (Duane)

The Family Health Care Decisions Act will enable family members and other loved ones to make health care treatment decisions on behalf of a patient unable to make such decisions.  

Activity:  Passed both houses, signed into law 3/16/10, chapter 8, effective June 1, 2010, adding articles 29-CC and 29-CCC to the public health law.

Health/Consumer - Due Process for Medicaid Recovery Actions A10630c (Gottfried)/S7821b (Johnson)

This bill includes both due process protections for Medicaid consumers and procedural reforms applicable to fraud investigations launched by the Office of the Medicaid Inspector General (OMIG) against Medicaid providers.  The consumer due process protections would apply both to investigations by OMIG and recovery actions by local social services districts. 

Activity:  Passed the Assembly Health Committee, held in Assembly Codes at session’s end; referred to Senate Health Committee.

Health Care Access - Protecting Medicaid Services and Improving Charity Care Funding A9708c/S6608b: Article VII Language for the Governor’s Health Budget

Language in the budget as finally passed by the legislature eliminated proposed cuts to personal care services in Medicaid and scaled back on proposed restrictions on prescription drug coverage for seniors using the EPIC program.  While efforts to improve accountability and transparency in New York’s charity care funding were not completely successful, a new commission was created to make recommendations for future action in this area. 

Activity:  Signed into law 7/2/10.  Chapter 58.  Effective upon signature.

Health/Pharmaceutical Coverage - Budget Bill 

Empire Justice worked successfully to keep the limited Medicaid/Part D wrap intact.  We also worked hard to keep the EPIC (Elderly Pharmaceutical Insurance Coverage program) wrap intact as much as possible.  The Governor had proposed to eliminate it completely.  Ultimately, the budget provided that emergency/temporary EPIC wrap coverage can be provided while doctors pursue their Part D appeals.

HOUSING/FORECLOSURE

Foreclosure - Standing to Sue A11465 (Weinstein)/S8174 (Klein)

This bill would allow the defendant to challenge the plaintiff’s standing to sue at any point in time in a foreclosure defense.  It would require plaintiffs to file proof of ownership with the court. 

Activity:  Passed Assembly, referred to Senate Rules Committee.

Foreclosure - Attorneys’ Fees in Foreclosure Cases A1239 (Lancman)/S2614b (Klein)

The “Access to Justice in Lending Act” would provide that mortgagors who prevail in their foreclosure cases are entitled to reciprocal attorneys fees if the contract similarly provides for fees for the lender. 

Activity:  Signed into law 10/20/10, Chapter 550, effective December 20, 2010.

Housing - Discrimination A10689a (Bing)/S7613a (Squadron)

This law would have amended the Executive Law provisions concerning discrimination in housing and in various other settings.  The amendment would have added a prohibition against discrimination based on source of income. 

Activity:  Passed Senate and Assembly, vetoed by the Governor on 8/13/10.

Note:  Information for this round-up was provided by Empire Justice staff:  Susan Antos, Katie Courtney, Trilby de Jung, Mike Hanley, Kirsten Keefe, Ruhi Maker, Cathy Roberts, Louise Tarantino, Barb VanKerkhove, and Barbara Weiner.