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 twenty-one 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 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 Title.
(2) An adjustment or recovery under
subparagraphs (i) or (ii) of paragraph (1) 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 twenty-one 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.