N.Y. Social Services Law § 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

individuals with developmental disabilities, 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.