N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-7.11

Current through Register Vol. 46, No. 45, November 2, 2024

Section 360-7.11 - Medical assistance liens and recoveries

(a) Liens. The social services district may not impose any lien against a person's property prior to his or her death for MA paid or to be paid on his or her behalf except:

(1) based upon a court judgment for benefits incorrectly paid; or

(2) against claims and suits for personal injuries, to recover the amount of MA furnished to a person on and after the date the person incurred the injuries; or

(3) with respect to the real property of a person who is an in-patient in a nursing facility, intermediate care facility for the mentally retarded, or other medical institution, and who is not reasonably expected to be discharged from the medical institution and return home, provided that:

(i) any such lien will dissolve upon the person's discharge and return home; and

(ii) no lien may be imposed on the person's home if the person's spouse, child under 21 years of age, certified blind or certified disabled child of any age, or sibling who has an equity interest in the home and who resided in the home for at least one year immediately before the date of the person's admission to the medical institution, is lawfully residing in the home.

(b) Adjustments and recoveries.

(1) A social services district may make no adjustment or recovery for MA correctly paid except from:

(i) the estate of a person who was 65 years of age or older when he or she received MA; or

(ii) the sale of real property subject to a lien imposed pursuant to paragraph (a)(3) of this section, or from the estate of such a person; or

(iii) a legally responsible relative of an MA recipient, and then only the amount of MA granted, provided the relative has sufficient income and resources which he or she fails or refuses to make available. The amount of income and resources required to be contributed by a legally responsible relative is determined under Subpart 360-4 of this Part.

(2) An adjustment or recovery under subparagraph (1)(i) or (ii) of this subdivision may be made from a person's estate only after the death of the person's surviving spouse, and only when the person has no surviving child who is under 21 years of age or who is certified blind or certified disabled.

(3) In addition to the limitations set forth in paragraph (2) of this subdivision, in the case of a lien on a person's home, no adjustment or recovery may be made when:

(i) a sibling of the person resided in the home for at least one year immediately before the date of the person's admission to the medical institution, and has lawfully resided in the home on a continuous basis since the date of admission; or

(ii) a child of the person resided in the home for a period of at least two years immediately before the date of the person's admission to a medical institution, provided care to such person which permitted the person to reside at home rather than in an institution, and has lawfully resided in the home on a continuous basis since the date of admission.

(4) A social services district may maintain an action pursuant to sections 101 and 104 of the Social Services Law to collect from a trustee, grantor, or grantor's spouse any beneficial interest of the grantor or grantor's spouse in any trust established other than by will, to reimburse such district for the amount of MA granted to, or on behalf of, a grantor or grantor's spouse. The beneficial interest of the grantor or grantor's spouse includes any income and principal amounts to which the grantor or grantor's spouse would be entitled under the terms of the trust, by right or in the discretion of the trustee, assuming the full exercise of discretion by the trustee.

(5) If an MA recipient receives an insurance settlement for personal injuries which includes an amount for medical bills, the social services district may recover from such amount the cost of MA provided for the treatment of the injuries.

(6) A social services district may maintain an action under the Debtor and Creditor Law to set aside any transaction which appears to have been made for the purpose of qualifying a person for MA or for avoiding a lien or recovery of MA paid on behalf of an MA recipient.

N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 360-7.11