Saturday, February 04, 2012
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Newest Developments in Medicaid

The Fourth Department of the Appellate Division in New York has just held in Homan v County of Cattataugus that Social Services may have a "lien" on any personal injury recovery, (http://scholar.google.com/scholar_case?case=10581411594797156890&q=Homan+v+County+of+Cattaraugus&hl=en&as_sdt=20000000004).  This decision seems in direct conflict with the US Supreme Court's decision in Ahlborn and will probably fail upon further appellate review.(http://scholar.google.com/scholar_case?case=1735549210998437207&q=Arkansas+v+Ahlborn&hl=en&as_sdt=20000000003)  Nevertheless, the Counties stand to recoup much money during the interim.  There are tactics that the plaintiff's lawyer can follow that work toward maximizing the client's recovery while minimizing the State's intrusion.

 

The Fourth Department is in the lead again:  On November 12, 2010 they held that Ahlborn does not control or limit the County's ability to reclaim monies paid for "nursing home care" provided the receipent is deceased and the recovery is for "conscious pain and suffering".  Not addressed is the recovery for wrongful death.  That passes outside the estate and should not be subject to claim by the Department of Social Services.  See: Brown v Monroe County Department of Social Services
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