Plaintiff Hillside Manor Rehabilitation and Extended Care Center, LLC d/b/a Hillside Manor Nursing Center ("plaintiff") brought this action against Jacqueline Barnes ("defendant"), the daughter of deceased resident Mable Simms ("Ms. Simms"), to recover $6,830.40 for services provided during Ms. Simms' residency. Plaintiff alleged in its verified complaint that defendant received and retained the funds that should have been paid for services to Ms. Simms, to wit, her Net Available Monthly Income ("NAMI").^[FN1] Plaintiff further alleged that defendant's intent was that it "be defrauded, hindered, delayed and otherwise prevented from collecting" payment.

Plaintiff and defendant appeared for trial before this Court on May 18, 2010. Plaintiff was represented by Sean P. Lenihan, Esq. of Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP; defendant was self-represented.

Plaintiff's sole witness was Susan Kui of its accounts receivable department. She testified that Ms. Simms was a resident of the plaintiff facility from July 6, 2007 until her death on February 11, 2008; that a June 11, 2008 bill totaling $6,830.40 was mailed to defendant; and that such bill was never paid. She also testified that bills with "projected" amounts due were sent to defendant prior to the June 11 bill; plaintiff did not proffer the "projected" bills into evidence. Further, there was no testimony regarding the exact dates of such bills.

The June 11 bill was admitted into evidence as Plaintiff's Exhibit 1; a March 13, 2008 Medicaid approval letter was Plaintiff's Exhibit 2; and an undated Medicaid budget including the NAMI payable to the nursing home was Plaintiff's Exhibit 3. The Court notes that Exhibits 1 and 2 were dated after Ms. Simms' death. Plaintiff also introduced Chase bank statements with copies of [*2]cancelled checks, deposit and withdrawal slips from Ms. Simms' account (which became a joint account with defendant effective the statement period between May 24, 2007 to June 25, 2007) as certified business records; such statements were admitted as Exhibit 4. The records confirm monthly Social Security automatic deposits.

Ms. Kui testified that plaintiff sent the June 11, 2008 bill (Exhibit 1) to defendant at 87-40 165 Street, Jamaica, New York. Defendant testified that she did not receive it, and that before the date of the bill, she had moved from the Jamaica address to Union City, New Jersey, and then to her current address in Rosedale, Queens. In fact, among the documents within Exhibit 4 are June 6, 2007 and July 3, 2007 bank withdrawal slips apparently signed by the defendant, listing addresses on Palisades Avenue in Union City, New Jersey, and her current Rosedale address respectively, thereby confirming her testimony.

Defendant further testified that she used money primarily to pay household bills for the home Ms. Simms maintained in Queens. While the bank records reflect several transactions with no clear nexus to household bills, e.g., automated teller machine (ATM) and bank teller withdrawals in varying amounts, as well as assorted store purchases, there were also online payments to Keyspan, Time Warner Cable, Con Edison, and at least one such payment to the New York City Water Board. The Court notes that before defendant became a joint account holder, and before Ms. Simms was a resident in the plaintiff facility, there also were numerous bank withdrawals, both by ATM and teller. Consequently, such withdrawals after defendant became an account holder do not per se constitute evidence of defendant's alleged intent to defraud the plaintiff. Further, plaintiff's counsel did not conduct a cross-examination of defendant; therefore, no testimony was elicited regarding her knowledge of the plaintiff's bill or of the bank withdrawals and store purchases which could have supported plaintiff's claim of defendant's intent to defraud the facility, hinder, delay or otherwise prevent collection of payment.

This Court deems plaintiff's allegation of intent to defraud or hinder payment to presume defendant's responsibility to pay. In her testimony, defendant emphasized that she did not sign a contract to be personally liable for her mother's nursing home debt. In fact, state regulations specifically prohibit nursing homes from requiring a third party personal guarantee of payment as a condition of the resident's admission. Such regulations do permit nursing facilities, however, to require a person with access to the resident's assets to pay the facility from the resident's funds. The New York State Department of Health (DOH) regulations state:

"(b) Admission rights. The nursing home shall protect and promote

the rights of residents and potential residents by establishing and implementing policies which ensure that the facility:

(1) shall not require a third-party guarantee of payment to the facility as a condition of admission, or expedited admission, or continued stay in the facility;...

(6) may require an individual who has legal access to a resident's income or resources available to pay for facility care, to sign a contract, without incurring personal financial liability, toprovide the facility payment from the resident's income or resources..." (10 NYCRR §415.3[b][1] and [6]). [*3]

Similar provisions exist in the Social Security Act (SSA), 42 USC §1396r (c)(5)(A)(ii) and the Centers for Medicare and Medicaid Services (CMS) regulations, 42 CFR §483.12(d)(2). The pertinent section of the SSA, compliance of which is required for reimbursements to nursing homes under the Medicaid program, provides:

"(5) Admissions policy

(A) Admission

With respect to admissions practices, a nursing facility must—

(ii) not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility..." (42 USC §1396r [c][5][A][ii])

The applicable section in the CMS regulations state:

"(d) Admissions policy.

(2) The facility must not require a third party guarantee of payment

to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may require an individual who has legal access to a resident's income or resources available to pay for facility care to sign a contract, without incurring

personal financial liability, to provide facility payment from the resident's income or resources..." (42 CFR §483.12 [d][2]).

Although defendant became a joint account holder on her mother's bank account prior to the mother's nursing home admission, there was no evidence offered in this case of a contract or agreement requiring defendant to pay the plaintiff from that account or from any of Ms. Simms' assets or resources. In any event, based on the DOH and CMS regulations, there could be no personal financial liability to defendant, even if such a contract or agreement existed.

Additionally, in the relatively thin body of case law in New York State regarding third-party liability for nursing home bills, the Court, in considering the federal and state regulations cited herein, has held that third parties are not responsible for paying such bills (see Amsterdam Nursing Home Corp. v Lang, 16 Misc 3d 1138 [A] [Sup Ct, New York County 2007]; Prospect Park Nursing Home, Inc. v Goutier, 12 Misc 3d 1192[A] [Civ Ct, Kings County 2006, Battaglia, J.]). In each of those cases, despite the defendant's signature on an admission agreement (Amsterdam) and designation as attorney-in-fact (Prospect Park), the Court found no third-party liability. In the matter herein, there was no document of any kind which would have conferred responsibility to the defendant for payment of Ms. Simms' nursing home care.

The Court finds: 1) plaintiff has failed to establish defendant's intent that it be "be defrauded, hindered, delayed and otherwise prevented from collecting" payment; 2) defendant did not execute an agreement or contract requiring payment from Ms. Simms' funds; and 3) even if she had executed such an agreement, under state and federal regulations, she could not be held personally liable for payment to the plaintiff nursing home.

Accordingly, the court renders decision and judgment for the defendant; the matter herein is dismissed.

The foregoing constitutes the decision and order of this Court.

Dated: May 28, 2010 [*4]

_________________________________

Hon. Chereé A. Buggs

Judge, Civil Court of the City of New York

County of Queens