 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Costa v. Boyce9/3/2003
This opinion is uncorrected and subject to revision before publication in the Miscellaneous Reports.
(*1)
At an SCP Term, Part 47 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 3rd day of September, 2003
The following papers numbered 1 to 5 read on this motion:
Papers Numbered
(*2)Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-2
Opposing Affidavits (Affirmations) 3
Reply Affidavits (Affirmations) 4, 5
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, plaintiffs move for an order deeming an alleged lien asserted by non-party Department of Social Services of the City of New York ("DSS") against the proceeds of the infant plaintiff's recovery herein "extinguished and waived."
On November 22, 1999, the infant plaintiff was diagnosed with lead poisoning. Thereafter, his mother commenced the instant action on his behalf against the owner of the premises where they resided. Subsequently, plaintiffs received a notice from DSS that it was asserting a Medicaid Lien against any recovery in this action up to the amount of $41,037.64. At a mediation session on April 28, 2003, a settlement agreement was (*3)reached between plaintiffs and defendant, pending the court's approval.
In support of their motion, plaintiffs initially claim that, with the exception of a few clinic visits, none of the expenses in the notice of lien are related to the infant's lead poisoning. Instead, plaintiffs claim, the services arose from the infant's premature birth and complications therefrom, including anemia and lung disease. Plaintiffs further note that the infant was never hospitalized for treatment of his lead poisoning. Plaintiffs further argue that most of the expenses in the notice of lien are for educational services and related speech, physical and occupational therapy (provided by The League Treatment Center a/k/a The League School) which are required to be available free of charge under the New York State Constitution, Education Law § 4401 (2) (k) (20) and 20 USC § 1401 (8).
In opposition, DSS claims that the record does not support plaintiffs' assertion that the relevant services are unrelated to the infant plaintiff's lead poisoning. DSS asserts that plaintiff Christine Lowery testified that the infant was healthy when he was discharged from the hospital shortly after his birth. DSS also maintains that expenditures in connection with services provided by The League School are recoverable since the State of New York has not specifically provided that such services are exempt from any Medicaid recovery.
The Medicaid medical assistance program, administered in New York by DSS, is jointly funded and implemented by both the federal and state governments. The State acquires the rights of any individual to payment for any health care services and "will (*4)take all reasonable measures to ascertain the legal liability of third parties . . . to pay for care and services available" (42 USC § 1396a , ; see also Social Services Law § 363 et seq.). DSS is responsible for the imposition of liens, such as Medicaid Liens, and the recovery of them (Social Services Law §§ 104-b and 367-a). The full settlement resulting from a personal injury case is subject to recoupment by DSS from the responsible third party (Calvanese v Calvanese, 93 NY2d 111). However, not every health care expense is recoverable. A child with disabilities is entitled to a free education designed to meet special nee
Page 1 2 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|