Medicaid Estate Recovery in New York

Who is subject to recovery

Recipients who were age 55 or older when Medicaid was paid, or who were permanently institutionalized in a nursing or other medical facility.^{1, 2}

What counts as the estate

Recovery reaches the probate estate only. Soc. Serv. Law 369(6) defines the estate as property passing under the terms of a valid will or by intestacy.²

The expanded definition that reached non-probate assets (joint property, life estates, living trusts) expired December 6, 2011, and districts must not include assets that pass outside the probate estate.³

OMIG's claim is against the estate and pertains only to assets in the deceased recipient's name. Beneficiaries and estate representatives are not responsible for paying the claim out of their own funds.¹

When recovery is deferred or barred

Recovery is deferred while there is a surviving spouse, a surviving child under 21, or a surviving child of any age who is certified blind or disabled, and is made only after these circumstances no longer apply.^{1, 2}

Undue-hardship waiver

Recovery may be waived for undue hardship where the asset is the sole income-producing asset of the beneficiary, such as a limited-income family farm or business.¹

It may also be waived where the asset is real property of modest value, no higher than 50 percent of the county average selling price, that is the beneficiary's primary residence.¹

How the state files its claim

Soc. Serv. Law 369(7) directs the department, when it determines necessary program features are in place, to assume sole responsibility for commencing recovery actions or proceedings.²

The claim is the State's, filed in Surrogate's Court. OMIG's vendor supports the local county attorneys who appear in court on behalf of the State.¹

The Medicaid claim is paid as a preferred creditor of the estate, after funeral expenses, administrative costs and federal liens, before assets are distributed to heirs.¹

Governing law: N.Y. Soc. Serv. Law 369; 18 NYCRR 360-7.11

Health Management Systems, Inc. (HMS, a Gainwell Technologies company)

OMIG's estate recovery vendor; sends the Notice of Intent to File a Claim and the Estate Questionnaire¹

1. 1.Casualty & Estate Recovery: Estate Recovery (New York State Office of the Medicaid Inspector General)
2. 2.N.Y. Soc. Serv. Law 369
3. 3.GIS 11 MA/028 (New York State Department of Health)