S T A T E   O F   N E W   Y O R K
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                                  10314

                          I N  A S S E M B L Y

                              May 20, 2016
                               ___________

Introduced by M. of A. HEVESI -- read once and referred to the Committee
  on Social Services

AN  ACT to amend the social services law, in relation to the recovery of
  property from persons who have fraudulently failed to disclose proper-
  ty and liens for medical assistance on claims and suits  for  personal
  injury; and to repeal certain provisions of such law relating thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 103 of the social services law is REPEALED.
  S 2. Section 104 of the social services law, subdivision 1 as  amended
by  chapter 573 of the laws of 1964, subdivision 2 as amended by chapter
909 of the laws of 1974, subdivision 3 as added by chapter  433  of  the
laws  of  1993, and subdivision 4 as added by chapter 340 of the laws of
2003, is amended to read as follows:
  S 104. Recovery from a person discovered to have property. 1. A public
welfare official may bring AN action  or  proceeding  against  a  person
discovered  to  have  FRAUDULENTLY  FAILED  TO DISCLOSE real or personal
property[, or against the estate or the  executors,  administrators  and
successors  in  interest  of  a person who dies leaving real or personal
property, if such person, or any one for whose  support  he  is  or  was
liable,  received  assistance  and  care during the preceding ten years,
and] IN THEIR POSSESSION AT THE TIME OF APPLICATION  OR  RECERTIFICATION
THAT  OTHERWISE  WOULD  NOT  HAVE  BEEN  EXEMPT  PURSUANT TO SECTION ONE
HUNDRED THIRTY-ONE-N OF THIS CHAPTER.    SUCH  PUBLIC  WELFARE  OFFICIAL
shall  be  entitled  to recover up to the COST OF ASSISTANCE OR CARE, SO
LONG AS IT DOES NOT EXCEED THE value of such property [the cost of  such
assistance  or  care.  Any  public  assistance  or care received by such
person shall constitute an  implied  contract.  No  claim  of  a  public
welfare official against the estate or the executors, administrators and
successors  in  interest  of  a person who dies leaving real or personal
property, shall be barred or defeated, in whole or in part, by any  lack
of  sufficiency  of ability on the part of such person during the period
assistance and care were received.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13655-02-6
              

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  Nor shall the claim asserted by a public welfare official against  any
person  under  this section be impaired, impeded, barred or defeated, in
whole or in part, on the grounds that another person or persons may also
have been liable to contribute.
  In  all  claims of the public welfare official made under this section
the public welfare official shall be deemed a preferred creditor.
  2. No right of action shall accrue against a person  under  twenty-one
years  of  age by reason of the assistance or care granted to him unless
at the time it was granted the person was possessed of money and proper-
ty in excess of his reasonable requirements,  taking  into  account  his
maintenance, education, medical care and any other factors applicable to
his condition.
  3.  To  the  extent described in section 7-1.12 of the estates, powers
and trusts law, the trustee of a supplemental needs trust which conforms
to the provisions of such section 7-1.12 shall not be deemed to be hold-
ing assets for the benefit of a beneficiary who  may  otherwise  be  the
subject  of  a  claim  under  this  section and no action may be brought
against either the trust or the trustee to recover the cost  of  assist-
ance  or  care provided to such person, or anyone for whose support such
person is or was liable].
  [4.] 2. (A) NO PUBLIC WELFARE OFFICIAL SHALL BE ENTITLED TO RECOUP ANY
PUBLIC ASSISTANCE UNLESS SUCH RECOUPMENT IS OTHERWISE REQUIRED BY FEDER-
AL LAW, IS NECESSARY TO REIMBURSE THE STATE FOR PROPERLY PAID SAFETY NET
ASSISTANCE WHILE THE RECIPIENT HAD A  PENDING  APPLICATION  FOR  FEDERAL
SUPPLEMENTAL  SECURITY  INCOME  THAT  WAS SUBSEQUENTLY APPROVED, OR SUCH
PUBLIC ASSISTANCE WAS RECEIVED BY FRAUDULENT MEANS.
  (B) Any inconsistent provision of this chapter or  of  any  other  law
notwithstanding,  a  social  services  official may not assert any claim
under any provision of  this  chapter  to  recover  payments  of  public
assistance   if   such   payments   were  reimbursed  by  child  support
collections.
  S 3. Section 104-b of the social services law, as added by chapter 382
of the laws of 1964, and renumbered by chapter 550 of the laws of  1971,
subdivision  1 as amended by section 52-g of part H of chapter 59 of the
laws of 2011, subdivision 2 as amended by chapter 281  of  the  laws  of
2005, subdivision 5 as added and subdivisions 6, 7, 8, 9, 10, 11, 12 and
13  as renumbered by chapter 560 of the laws of 1969, and subdivision 14
as added by chapter 340 of the laws of  2003,  is  amended  to  read  as
follows:
  S  104-b.  Liens  for [public] MEDICAL assistance [and care] on claims
and suits for personal injuries. 1. If a recipient of  [public]  MEDICAL
assistance  [and  care] shall have a right of action, suit, claim, coun-
terclaim or demand against another on account of any  personal  injuries
suffered  by such recipient, then the [public welfare] MEDICAID official
for the [public welfare] SOCIAL SERVICES district providing such MEDICAL
assistance [and care] shall have a lien for such amount as may be  fixed
by  the  [public  welfare] MEDICAID official not exceeding, however, the
total amount of such MEDICAL assistance [and  care]  furnished  by  such
[public  welfare]  SOCIAL  SERVICES  official on and after the date when
such injuries were incurred.  In all such cases, notice of the commence-
ment of such an action shall be served upon the [public welfare]  SOCIAL
SERVICES district that has provided or is providing such MEDICAL assist-
ance [and care], or upon the department of health.
  The commissioner shall endeavor to ascertain whether such person, firm
or  corporation  alleged  to be responsible for such injuries is insured

A. 10314                            3

with a liability insurance company, as the case may  be,  and  the  name
thereof.
  2.  No  such lien shall be effective, however, unless a written notice
containing the name and address of the injured recipient, the  date  and
place  of  the accident, and the name of the person, firm or corporation
alleged to be liable to the injured party for  such  injuries,  together
with a brief statement of the nature of the lien, the amount claimed and
that a lien is claimed upon the said right of action, suit, claim, coun-
terclaim  or  demand by the [public welfare] MEDICAID official be served
prior to the payment of any moneys to such injured party,  by  certified
with  return receipt or registered mail upon such person, firm or corpo-
ration, and his or her, its or their attorney, if known,  and  upon  any
insurance  carrier  which  has  insured such person, firm or corporation
against such liability. A copy of the notice of lien shall be mailed  to
such carrier at least twenty days prior to the date on which such carri-
er makes a payment to the injured party. Except as against such carrier,
the  effectiveness  of  the  lien  against  any other party shall not be
impaired by the failure to mail the required notice to such carrier.  In
addition,  a true copy of such notice shall be served by regular mail to
the [welfare] MEDICAID recipient and to his or her attorney,  if  known.
Such  mailing shall be deemed to be effective, notwithstanding any inac-
curacy or omission, if the information contained therein shall be suffi-
cient to enable those to whom  the  notice  is  given  to  identify  the
injured  recipient  and  the  occurrence upon which his or her claim for
damages is based.
  3. Upon the service of the notice, as  aforesaid,  the  local  [public
welfare]  MEDICAID official shall file a true copy thereof in the office
of the clerk of the county in which his office is located, and, thereup-
on the lien of the [public welfare]  MEDICAID  official  in  the  amount
therein  stated shall attach to any verdict, decision, decree, judgment,
award or final order in any suit, action or proceeding in any  court  or
administrative  tribunal of this state respecting such injuries, as well
as the proceeds of any settlement  thereof,  and  the  proceeds  of  any
settlement of any claim or demand respecting such injuries prior to suit
or action.
  4.  An  amended notice of lien may be served and filed by such [public
welfare] MEDICAID official  in  the  same  manner  and  subject  to  the
provisions  of  this  section  governing  the  notice of lien originally
served and filed pursuant to this section.
  5. (a) The person, firm,  corporation  or  insurance  carrier,  having
notice that a [social services] MEDICAID official has served and filed a
notice  of  lien,  and  intending to make payment on the personal injury
claim upon which the lien was filed, shall notify the [social  services]
MEDICAID  official  by  certified  or registered mail, at least ten days
prior to the date such payment is proposed to be made, of the amount and
date thereof.
  (b) Notwithstanding any inconsistent provision of  this  section,  the
[social  services]  MEDICAID  official shall have the right to serve and
file by certified or registered mail, within five days after receipt  of
such  notice,  excluding  Saturdays,  Sundays,  and holidays, an amended
notice of lien to include the amount of [public] MEDICAL assistance [and
care] furnished to the recipient after the date such official served and
filed the notice of lien or the last previous amendment thereof.
  (c) A person, firm, corporation or insurance  carrier  that  fails  to
give  the  notice required by paragraph (a) of this subdivision shall be
liable to the [social services] MEDICAID official  to  the  same  extent

A. 10314                            4

that  it  would  have  been  liable  had  such notice been given and the
[social services] MEDICAID official had filed the amended notice of lien
provided for in paragraph (b) of this subdivision.
  6.  Such  lien  may  be enforced by action against those alleged to be
liable for such injuries, as aforesaid, by the  [local  public  welfare]
MEDICAID official in any court of appropriate jurisdiction.
  7.  The  aforesaid  lien shall be valid and effective, when the notice
thereof and the statement are served and filed as aforesaid,  and  shall
continue  until  released  and  discharged by the [local public welfare]
MEDICAID official by an instrument in writing  and  filed  in  the  said
county  clerk's  office, and no release, payment, discharge or satisfac-
tion of any such claim, demand, right of action,  suit  or  counterclaim
shall be valid or effective against such lien.
  8.  The  county  clerk  shall, at the expense of the county, provide a
suitable book with proper index, to be called the [public welfare] MEDI-
CAID lien docket, in which he shall  enter  the  names  of  the  [public
welfare]  MEDICAID official and the recipient, the date and place of the
accident and the name or names of those alleged to be  liable  for  such
injuries, as aforesaid.
  9. The provisions of this section to the contrary notwithstanding, the
lien  herein created shall be subject and subordinate to the lien on the
amount recovered  by  verdict,  report,  decision,  judgment,  award  or
decree,  settlement or compromise, of any attorney or attorneys retained
by any such injured person  to  prosecute  his  claim  for  damages  for
personal injuries, having or acquiring by virtue of such retainer a lien
on  the  cause  of action of any such injured person, or on the verdict,
report, decision, judgment, decree made in, or any settlement or compro-
mise of, any such action or claim for damages for personal injuries.
  10. The provisions of this section to  the  contrary  notwithstanding,
the lien herein created shall be subordinate to the lien of any hospital
claimed under and to the extent recognized by section one hundred eight-
y-nine  of  the  lien  law, but only for treatment, care and maintenance
given, prior to or in excess of the  [public]  MEDICAL  assistance  [and
care] granted by the [public welfare] MEDICAID official.
  11.  The  provisions  of this section shall not be deemed to adversely
affect the right of a [public welfare] MEDICAID official who  has  taken
an  assignment of the proceeds of any such right of action, suit, claim,
counterclaim or demand, to  recover  under  such  assignment  the  total
amount  of  MEDICAL  assistance [and care] for which such assignment was
made.
  12. The provisions of this section to  the  contrary  notwithstanding,
the  lien  herein  created  shall not apply with respect to any claim or
benefits payable to the recipients  of  any  form  of  [public]  MEDICAL
assistance [or care], part of which is paid for by the government of the
United  States or any agency thereof when, in the opinion of the commis-
sioner, such lien would jeopardize  the  continuation  of  such  federal
contribution.
  13.  The  provisions  of this section to the contrary notwithstanding,
the [public welfare] MEDICAID official may in his discretion release  to
the  injured person an amount not to exceed the cost of two years' main-
tenance from the lien herein created.
  [14. Any inconsistent provision of this chapter or of  any  other  law
notwithstanding,  a  social  services  official may not assert any claim
under any provision of  this  chapter  to  recover  payments  of  public
assistance   if   such   payments   were  reimbursed  by  child  support
collections.]

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  This section shall not apply to any claim or award which is or may  be
allowed  pursuant  to the provisions of the [workmen's] WORKERS' compen-
sation law or the volunteer [firemen's] FIREFIGHTERS' benefit law.
  S 4. Section 131-r of the social services law is REPEALED.
  S  5. This act shall take effect on the first of April next succeeding
the date on which it shall have become a law.