§ 369 — Application of other provisions

§ 369. Application of other provisions. 1. All provisions of this\nchapter not inconsistent with this title shall be applicable to medical\nassistance for needy persons and the administration thereof by the\nsocial services districts.\n 2. (a) Notwithstanding any inconsistent provision of this chapter or\nother law, no lien may be imposed against the property of any individual\nprior to his or her death on account of medical assistance paid or to be\npaid on his or her behalf under this title, except:\n (i) pursuant to the judgment of a court on account of benefits\nincorrectly paid on behalf of such individual, or\n (ii) with respect to the real property of an individual who is an\ninpatient in a nursing facility, intermediate care facility for\nindividuals with developmental disabilities, or other medical\ninstitution, who is not reasonably expected to be discharged from the\nmedical institution and to return home, and who is required, as a\ncondition of receiving services in such institution under the state plan\nfor medical assistance, to spend for costs of medical care all but a\nminimal amount of his or her income required for personal needs;\nprovided, however, any such lien will dissolve upon the individual's\ndischarge from the medical institution and return home; in addition, no\nsuch lien may be imposed on the individual's home if one of the\nfollowing persons is lawfully residing in the home:\n (A) the spouse of the individual;\n (B) a child of the individual who is under twenty-one years of age or\nwho is blind or permanently and totally disabled; or\n (C) a sibling of the individual who has an equity interest in the home\nand who was residing in the home for a period of at least one year\nimmediately before the date of the individual's admission to the medical\ninstitution.\n (b) (i) Notwithstanding any inconsistent provision of this chapter or\nother law, no adjustment or recovery may be made against the property of\nany individual on account of any medical assistance correctly paid to or\non behalf of an individual under this title, except that recoveries must\nbe pursued:\n (A) upon the sale of the property subject to a lien imposed on account\nof medical assistance paid to an individual described in clause (ii) of\nparagraph (a) of this subdivision, or from the estate of such\nindividual; and\n (B) from the estate of an individual who was fifty-five years of age\nor older when he or she received such assistance, provided that for\nindividuals whose eligibility for medical assistance was based on\nparagraph (b) of subdivision one of section three hundred sixty-six of\nthis title, recovery shall be limited to medical assistance consisting\nof nursing facility services, home and community-based services, and\nrelated hospital and prescription drug services.\n (ii) Any such adjustment or recovery shall be made only after the\ndeath of the individual's surviving spouse, if any, and only at a time\nwhen the individual has no surviving child who is under twenty-one years\nof age or is blind or permanently and totally disabled, provided,\nhowever, that nothing herein contained shall be construed to prohibit\nany adjustment or recovery for medical assistance furnished pursuant to\nsubdivision three of section three hundred sixty-six of this chapter.\n (iii) In the case of a lien on an individual's home, any such\nadjustment or recovery shall be made only when:\n (A) no sibling of the individual who was residing in the individual's\nhome for a period of at least one year immediately before the date of\nthe individual's admission to a medical institution referred to in\nsubparagraph (ii) of paragraph (a) of subdivision two of this section,\nand is lawfully residing in such home and has lawfully resided in such\nhome on a continuous basis since the date of the individual's admission\nto the medical institution, and\n (B) no child of the individual who was residing in the individual's\nhome for a period of at least two years immediately before the date of\nthe individual's admission to a medical institution referred to in\nsubparagraph (ii) of paragraph (a) of subdivision two of this section,\nand who establishes to the satisfaction of the state that he or she\nprovided care to such individual which permitted such individual to\nreside at home rather than in an institution, and is lawfully residing\nin such home and has lawfully resided in such home on a continuous basis\nsince the date of the individual's admission to the medical institution.\n (c) Nothing contained in this subdivision shall be construed to alter\nor affect the right of a social services official to recover the cost of\nmedical assistance provided to an injured person in accordance with the\nprovisions of section one hundred four-b of this chapter.\n (d) Where a recovery or adjustment is made pursuant to this title with\nrespect to a case in a federally-aided category of medical assistance, a\npart of the net amount resulting from such recovery or adjustment shall\nbe paid or credited to the federal government pursuant to federal law\nand the regulations of the federal department of health and human\nservices.\n 3. The department and any social services district is hereby\nauthorized to maintain an action subject to sections one hundred one and\none hundred four of this chapter to collect from either a trustee,\ncreator, or creator's spouse any beneficial interest of either the\ncreator or creator's spouse in any trust, other than a testamentary\ntrust, to reimburse such department or district for the costs of medical\nassistance furnished to, or on behalf of, a creator or creator's spouse.\nFor the purpose of this subdivision, the beneficial interest of the\ncreator or creator's spouse includes the income and any principal\namounts to which the creator or creator's spouse would have been\nentitled by the terms of such trust by right or in the discretion of the\ntrustee, assuming the full exercise of discretion by the trustee for the\ndistribution of the maximum amount to either the creator or the\ncreator's spouse.\n 4. Any inconsistent provision of this chapter or other law\nnotwithstanding, all information received by social services and public\nhealth officials and service officers concerning applicants for and\nrecipients of medical assistance may be disclosed or used only for\npurposes directly connected with the administration of medical\nassistance for needy persons.\n 5. The requirements of this section with respect to adjustments and\nrecoveries of medical assistance correctly paid shall be waived in cases\nof undue hardship, as determined pursuant to the regulations of the\ndepartment in accordance with criteria established by the secretary of\nthe federal department of health and human services.\n 6. For purposes of this section, the term "estate" means all real and\npersonal property and other assets included within the individual's\nestate and passing under the terms of a valid will or by intestacy.\n 7. Notwithstanding any provision of law to the contrary, the\ndepartment shall, when it determines necessary program features are in\nplace, assume sole responsibility for commencing actions or proceedings\nin accordance with the provisions of this section, sections one hundred\none, one hundred four, one hundred four-b, paragraph (a) of subdivision\nthree of section three hundred sixty-six, subparagraph one of paragraph\n(h) of subdivision four of section three hundred sixty-six, and\nparagraph (b) of subdivision two of section three hundred sixty-seven-a\nof this chapter, to recover the cost of medical assistance furnished\npursuant to this title and title eleven-D of this article. The\ndepartment is authorized to contract with an entity that shall conduct\nactivities on behalf of the department pursuant to this subdivision.\nPrior to assuming such responsibility from a social services district,\nthe department of health shall, in consultation with the district,\ndefine the scope of the services the district will be required to\nperform on behalf of the department of health pursuant to this\nsubdivision.\n