NY Soc Serv L § 369 (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 369 - Application of Other Provisions.

§  369.  Application  of  other  provisions. 1. All provisions of this chapter not inconsistent with this title shall be applicable to  medical assistance  for  needy  persons  and  the  administration thereof by the social services districts.   2. (a) Notwithstanding any inconsistent provision of this  chapter  or other law, no lien may be imposed against the property of any individual prior to his or her death on account of medical assistance paid or to be paid on his or her behalf under this title, except:  (i)  pursuant  to  the  judgment  of  a  court  on account of benefits incorrectly paid on behalf of such individual, or  (ii) with respect to the real property of  an  individual  who  is  an inpatient  in  a  nursing  facility,  intermediate care facility for the mentally retarded, or other medical institution, who is  not  reasonably expected  to  be  discharged  from the medical institution and to return home, and who is required, as a condition of receiving services in  such institution  under  the  state plan for medical assistance, to spend for costs of medical care all but a minimal amount  of  his  or  her  income required  for  personal  needs;  provided,  however,  any such lien will dissolve upon the individual's discharge from  the  medical  institution and  return  home;  in  addition,  no  such  lien  may be imposed on the individual's home if one of the following persons is  lawfully  residing in the home:  (A) the spouse of the individual;  (B)  a child of the individual who is under twenty-one years of age or who is blind or permanently and totally disabled; or  (C) a sibling of the individual who has an equity interest in the home and who was residing in the home for a  period  of  at  least  one  year immediately before the date of the individual's admission to the medical institution.  (b)  (i) Notwithstanding any inconsistent provision of this chapter or other law, no adjustment or recovery may be made against the property of any individual on account of any medical assistance correctly paid to or on behalf of an individual under this title, except that recoveries must be pursued:  (A) upon the sale of the property subject to a lien imposed on account of medical assistance paid to an individual described in clause (ii)  of paragraph   (a)  of  this  subdivision,  or  from  the  estate  of  such individual; and  (B) from the estate of an individual who was fifty-five years  of  age or  older  when  he  or  she received such assistance, provided that for individuals whose  eligibility  for  medical  assistance  was  based  on paragraph  (b)  of subdivision one of section three hundred sixty-six of this title, recovery shall be limited to medical  assistance  consisting of  nursing  facility  services,  home and community-based services, and related hospital and prescription drug services.  (ii) Any such adjustment or recovery shall  be  made  only  after  the death  of  the individual's surviving spouse, if any, and only at a time when the individual has no surviving child who is under twenty-one years of age or is  blind  or  permanently  and  totally  disabled,  provided, however,  that  nothing  herein contained shall be construed to prohibit any adjustment or recovery for medical assistance furnished pursuant  to subdivision three of section three hundred sixty-six of this chapter.  (iii)  In  the  case  of  a  lien  on  an  individual's home, any such adjustment or recovery shall be made only when:  (A) no sibling of the individual who was residing in the  individual's home  for  a  period of at least one year immediately before the date of the individual's admission to  a  medical  institution  referred  to  in subparagraph  (ii)  of paragraph (a) of subdivision two of this section,  and is lawfully residing in such home and has lawfully resided  in  such home  on a continuous basis since the date of the individual's admission to the medical institution, and  (B)  no  child  of the individual who was residing in the individual's home for a period of at least two years immediately before the  date  of the  individual's  admission  to  a  medical  institution referred to in subparagraph (ii) of paragraph (a) of subdivision two of  this  section, and  who  establishes  to  the  satisfaction of the state that he or she provided care to such individual  which  permitted  such  individual  to reside  at  home rather than in an institution, and is lawfully residing in such home and has lawfully resided in such home on a continuous basis since the date of the individual's admission to the medical institution.  (c) Nothing contained in this subdivision shall be construed to  alter or affect the right of a social services official to recover the cost of medical  assistance provided to an injured person in accordance with the provisions of section one hundred four-b of this chapter.  (d) Where a recovery or adjustment is made pursuant to this title with respect to a case in a federally-aided category of medical assistance, a part of the net amount resulting from such recovery or adjustment  shall be  paid  or  credited to the federal government pursuant to federal law and the regulations of  the  federal  department  of  health  and  human services.   3.   The  department  and  any  social  services  district  is  hereby authorized to maintain an action subject to sections one hundred one and one hundred four of this chapter  to  collect  from  either  a  trustee, creator,  or  creator's  spouse  any  beneficial  interest of either the creator or creator's spouse in any  trust,  other  than  a  testamentary trust, to reimburse such department or district for the costs of medical assistance furnished to, or on behalf of, a creator or creator's spouse. For  the  purpose  of  this  subdivision, the beneficial interest of the creator or creator's  spouse  includes  the  income  and  any  principal amounts  to  which  the  creator  or  creator's  spouse  would have been entitled by the terms of such trust by right or in the discretion of the trustee, assuming the full exercise of discretion by the trustee for the distribution of  the  maximum  amount  to  either  the  creator  or  the creator's spouse.   4.   Any   inconsistent   provision  of  this  chapter  or  other  law notwithstanding, all information received by social services and  public health  officials  and  service  officers  concerning applicants for and recipients of medical assistance may  be  disclosed  or  used  only  for purposes   directly   connected   with  the  administration  of  medical assistance for needy persons.   5. The requirements of this section with respect  to  adjustments  and recoveries of medical assistance correctly paid shall be waived in cases of  undue  hardship,  as  determined  pursuant to the regulations of the department in accordance with criteria established by the  secretary  of the federal department of health and human services.   6.  For purposes of this section, the term "estate" means all real and personal property and other  assets  included  within  the  individual's estate and passing under the terms of a valid will or by intestacy.   7.   Notwithstanding  any  provision  of  law  to  the  contrary,  the department shall, when it determines necessary program features  are  in place,  assume sole responsibility for commencing actions or proceedings in accordance with the provisions of this section, sections one  hundred one,  one hundred four, one hundred four-b, paragraph (a) of subdivision three of section three hundred sixty-six, subparagraph one of  paragraph (h)  of  subdivision  four  of  section  three  hundred  sixty-six,  and paragraph (b) of subdivision two of section three hundred  sixty-seven-a  of  this  chapter,  to  recover the cost of medical assistance furnished pursuant  to  this  title  and  title  eleven-D  of  this  article.  The department  is  authorized to contract with an entity that shall conduct activities  on  behalf  of  the department pursuant to this subdivision. Prior to assuming such responsibility from a social  services  district, the  department  of  health  shall,  in  consultation with the district, define the scope of the  services  the  district  will  be  required  to perform  on  behalf  of  the  department  of  health  pursuant  to  this subdivision.