(a) For purposes of this section and sections 17b-261r and 17b-261s, (1) “nursing home facility” means a chronic and convalescent nursing home and a rest home with nursing supervision, and (2) “penalty period” means the period of Medicaid ineligibility imposed pursuant to 42 USC 1396p(c), as amended from time to time, on a person whose assets have been transferred for less than fair market value for the purposes of obtaining or maintaining Medicaid eligibility.
(b) Any transfer or assignment of assets resulting in the establishment or imposition of a penalty period shall create a debt, as defined in section 36a-645, that shall be due and owing to a nursing home facility for the unpaid cost of care provided during the penalty period to a nursing home facility resident who has been subject to the penalty period. The amount of the debt established shall not exceed the fair market value of the transferred assets at the time of transfer that are the subject of the penalty period.
(c) The provisions of this section shall not affect other rights or remedies of the parties. A nursing home facility may bring an action to collect a debt for unpaid care given to a resident who has been subject to a penalty period, provided (1) the debt recovery does not exceed the fair market value of the transferred asset at the time of transfer, and (2) the asset transfer that triggered the penalty period took place not earlier than two years prior to the date of the resident's Medicaid application. The nursing home facility may bring such action against (A) the transferor, or (B) the transferee.
(d) In actions brought under subsection (c) of this section, a court of competent jurisdiction may award actual damages, court costs and reasonable attorneys' fees to a nursing home facility if such court determines, based upon clear and convincing evidence, that a defendant incurred a debt to a nursing home facility by (1) wilfully transferring assets that are the subject of a penalty period, (2) receiving such assets with knowledge of such purpose, or (3) making a material misrepresentation or omission concerning such assets. 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. Any court, including a probate court acting under subdivision (3) of subsection (a) of section 45a-98 or section 45a-364, may also order that such assets or proceeds from the transfer of such assets be held in constructive trust to satisfy such debt.
(e) 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.
(P.A. 13-234, S. 128.)