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Estate of Barnes v. Lawrence Nursing Care Center11/10/2003
This opinion is uncorrected and subject to revision before publication in the Miscellaneous Reports.
(*1)
MEMORANDUM
The following papers have been read on this motion:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Papers Numbered
(*2) Affidavits (Affirmations) Annexed ______________
Opposing Affidavits (Affirmations) _______ _______
Reply Affidavits (Affirmations) --
(Affirmation) --
Other Papers --
Plaintiff by Order to Show Cause directed to the Department of Social Services, seeks to vacate a Medicaid lien asserted in this action which was initiated for injuries sustained by plaintiff's decedent while a patient in the defendant, nursing home's, care.
The claim for damages for conscious pain and suffering is predicated, in part, upon the defendant's alleged violation of Public Health Law §2801-d which creates a private right of action for patients of residential health care centers. The controversy surrounds the interpretation of subdivision 5 of this provision which, according to the plaintiff's interpretation, affords a waiver of Medicaid liens for any recovery had under this statute. The parties agree that the first clause in subdivision 5 prevents a damage award from rendering the patient ineligible to receive future Medicaid benefits, thus assuring that successful litigation does not become a pyrrhic victory. . What is in dispute is the language of the second half of subdivision 5 which (*3)provides that the damage awards "shall neither be taken into consideration nor required to be applied toward the payment of part payment of the cost of medical care or services available under said title eleven." Both plaintiff and the Department of Social Services would have us read this language as vitiating any lien upon payments made by the Medicaid program for past medical services. The difference between their views is that DSS would find a waiver for living plaintiffs only and the plaintiff argues that it applies in death cases as well. This Court disagrees with both positions.
The plain language of this provision is cast in terms of future performance and serves to insure that the patient, who will remain eligible for Medicaid even after being awarded damages, will be able to use that Medicaid coverage to pay for present and future medical costs instead of having to use the award to take care of current bills. This interpretation places the patient is no worse position than any other Medicaid recipient who has received a damages award and must satisfy a medicaid lien from its proceeds. This circumstance is not uniquely tied to the challenges that a nursing home patient faces in suing a nursing home and thus unsurprisingly is not ameliorated in this provision
Further, and as significantly, reading this provision as effecting a waiver of the medicaid lien, places it in direct conflict with the body of legislation contained in Title (*4)eleven of Article five of the Social Services Law. This piece of legislation authorizes the Department of Social Services to collect medicaid payments from damage awards, Social Services Law §367-a , and provides a procedural mechanism for the fixing of liens on such property. Social Services Law §104-b. In conjunction with federal mandates, it insures that Medicaid is "`the payor of last resort'." Cricchio v. Pennisi, 90 N.Y.2d 296, 305-306(1997)
This statutory scheme has come under close scrutiny in recent years and has been interpreted as granting a virtually unassailable right to the DSS to collect Medicaid payments due it. Thus, in Cricchio, supra, the Court of A
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