Sec. 17b-261r. Determination of applied income. Notice. Action by nursing home facility to recover applied income.

(a) For purposes of this section, “applied income” means the income of a recipient of medical assistance, pursuant to section 17b-261, that is required, after the exhaustion of all appeals and in accordance with state and federal law, to be paid to a nursing home facility for the cost of care and services.

(b) In determining the amount of applied income, the Department of Social Services shall take into consideration any modification to the applied income due to revisions in a medical assistance recipient's community spouse minimum monthly needs allowance, as described in Section 1924 of the Social Security Act, and any other modification to applied income allowed by state or federal law.

(c) A nursing home facility shall provide written notice to a recipient of medical assistance and any person authorized under law to be in control of such recipient's applied income (1) of the amount of applied income due pursuant to subsections (a) and (b) of this section, (2) of the recipient's legal obligation to pay such applied income to the nursing home facility, and (3) that the recipient's failure to pay applied income due to a nursing home facility not later than ninety days after receiving such notice from the nursing home facility may result in a civil action in accordance with this section.

(d) Pursuant to the notice provisions of subsections (c) and (f) of this section, a nursing home facility that is owed applied income may, in addition to all other remedies authorized under statutory and common law, bring a civil action to recover the applied income, provided the nursing home facility shall not commence such action against a recipient of medical assistance who has asserted that the applied income is needed to increase the minimum monthly needs allowance of the recipient's community spouse, pursuant to 42 USC 1396r-5(e)(2)(B). In such case, the nursing home facility may not commence such action until the recipient, the recipient's community spouse or the legal representative of either has exhausted their appeal rights before the Department of Social Services and in court. A nursing home facility may bring such action against (1) a medical assistance recipient who owes the applied income, or (2) a person with legal access to such recipient's applied income who acted with the intent to (A) deprive such recipient of the applied income, or (B) appropriate the applied income for himself, herself or a third person.

(e) If a court of competent jurisdiction determines, based upon clear and convincing evidence, that a defendant wilfully failed to pay or withheld applied income due and owing to a nursing home facility for more than ninety days after receiving notice pursuant to subsection (c) of this section, the court may award the amount of the debt owed, court costs and reasonable attorneys' fees to the nursing home facility. Court costs and reasonable attorneys' fees shall be awarded as a matter of law to a defendant who successfully defends an action or a counterclaim brought pursuant to this section. The provisions of this section shall not apply to a conservator who transfers income or principal with the approval of the Probate Court under subsection (d) or (e) of section 45a-655.

(f) A nursing home facility shall not file any action under this section until (1) thirty days after it has given written notice of such action to any person who received notice pursuant to subsection (c) of this section, or (2) ninety-one days after it has given written notice of such action and the information required by subsection (c) of this section to any person who has not received notice pursuant to subsection (c) of this section.

(P.A. 13-234, S. 129.)