39-709. Eligibility requirements of applicants for and recipients of assistance, available resources; failure to comply with reporting and other requirements, penalties; automatic assignment of suppor
39-709
39-709. Eligibility requirements of applicants forand recipients ofassistance, available resources; failure to comply with reporting and otherrequirements, penalties; automatic assignment of support rights; "medicalassistance estate" defined; lien procedures and enforcement.(a) General eligibility requirements for assistance for which federalmoneys are expended. Subject to the additional requirements below,assistance in accordance with plans under which federal moneys are expended maybe granted to any needy person who:
(1) Has insufficient income or resources to provide a reasonable subsistencecompatible with decency and health. Where a husband and wife are livingtogether, the combined income or resources of both shall be considered indetermining the eligibility of either or both for such assistance unlessotherwise prohibited by law. The secretary, in determining need of anyapplicant for or recipient of assistance shall not take into account thefinancial responsibility of any individual for any applicant or recipient ofassistance unless such applicant or recipient is such individual's spouse orsuch individual's minor child or minor stepchild if the stepchild is livingwith such individual. The secretary in determining need of an individual mayprovide such income and resource exemptions as may be permitted by federal law.For purposes of eligibility for aid for families with dependent children, forfood stamp assistance and for any other assistance provided through thedepartment of social and rehabilitation services under which federal moneys areexpended, the secretary of social and rehabilitation services shall considerone motor vehicle owned by the applicant for assistance, regardless of thevalue of such vehicle, as exempt personal property and shall consider anyequity in any additional motor vehicle owned by the applicant for assistance tobe a nonexempt resource of the applicant for assistance.
(2) Is a citizen of the United States or is an alien lawfully admitted to theUnited States and who is residing in the state of Kansas.
(b) Assistance to families with dependent children. Assistance maybe granted under this act to any dependent child, or relative, subject to thegeneral eligibility requirements as set out in subsection (a), who resides inthe state of Kansas or whose parent or other relative with whom the child isliving resides in the state of Kansas. Such assistance shall be known as aid tofamilies with dependent children. Where husband and wife are living togetherboth shall register for work under the program requirements for aid to familieswith dependent children in accordance with criteria and guidelines prescribedby rules and regulations of the secretary.
(c) Aid to families with dependent children; assignment of supportrights and limited power of attorney. By applying for or receiving aid tofamilies with dependent children such applicant or recipient shall be deemed tohave assigned to the secretary on behalf of the state any accrued, present orfuture rights to support from any other person such applicant may have in suchperson's own behalf or in behalf of any other family member for whom theapplicant is applying for or receiving aid. In any case in which an order forchild support has been established and the legal custodian and obligee underthe order surrenders physical custody of the child to a caretaker relativewithout obtaining a modification of legal custody and support rights on behalfof the child are assigned pursuant to this section, the surrender of physicalcustody and the assignment shall transfer, by operation of law, the child'ssupport rights under the order to the secretary on behalf of the state. Suchassignment shall be of all accrued, present or future rights to support of thechild surrendered to the caretaker relative. The assignment of support rightsshall automatically become effective upon the date of approval for or receiptof such aid without the requirement that any document be signed by theapplicant, recipient or obligee. By applying for or receiving aid to familieswith dependent children, or by surrendering physical custody of a child to acaretaker relative who is an applicant or recipient of such assistance on thechild's behalf, the applicant, recipient or obligee is also deemed to haveappointed the secretary, or the secretary's designee, as an attorney in fact toperform the specific act of negotiating and endorsing all drafts, checks, moneyorders or other negotiable instruments representing support payments receivedby the secretary in behalf of any person applying for, receiving or havingreceived such assistance. This limited power of attorney shall be effectivefrom the date the secretary approves the application for aid and shall remainin effect until the assignment of support rights has been terminated in full.
(d) Eligibility requirements for general assistance, the cost of whichis not shared by the federal government. (1) General assistance may begranted to eligible persons who do not qualify for financial assistance in aprogram in which the federal government participates and who satisfy theadditional requirements prescribed by or under this subsection (d).
(A) To qualify for general assistance in any form a needy person musthave insufficient income or resources to provide a reasonable subsistencecompatible with decency and health and, except as provided for transitionalassistance, be a member of a family in which a minor child or a pregnantwoman resides or be unable to engage in employment. The secretary shalladopt rules and regulations prescribing criteria for establishing when aminor child may be considered to be living with a family and whether aperson is able to engage in employment, including such factors as age orphysical or mental condition. Eligibility for general assistance, otherthan transitional assistance, is limited to families in which a minorchild or a pregnant woman resides or to an adult or family in which alllegally responsible family members are unable to engage in employment.Where a husband and wife are living together the combined income or resourcesof both shall be considered in determining the eligibility of either or bothfor such assistance unless otherwise prohibited by law. The secretary indetermining need of any applicant for or recipient of general assistance shallnot take into account the financial responsibility of any individual for anyapplicant or recipient of general assistance unless such applicant or recipientis such individual's spouse or such individual's minor child or a minorstepchild if the stepchild is living with such individual. In determining theneed of an individual, the secretary may provide for income and resourceexemptions.
(B) To qualify for general assistance in any form a needy person must be acitizen of the United States or an alien lawfully admitted to the United Statesand must be residing in the state of Kansas.
(2) General assistance in the form of transitional assistance may be grantedto eligible persons who do not qualify for financial assistance in a programin which the federal government participates and who satisfy the additionalrequirements prescribed by or under this subsection (d), but who do not meetthe criteria prescribed by rules and regulations of the secretary relating toinability to engage in employment or are not a member of a family in which aminor or a pregnant woman resides.
(3) In addition to the other requirements prescribed under this subsection(d), the secretary shall adopt rules and regulations which establish communitywork experience program requirements for eligibility for the receipt of generalassistance in any form and which establish penalties to be imposed when a workassignment under a community work experience program requirement is notcompleted without good cause. The secretary may adopt rules and regulationsestablishing exemptions from any such community work experience programrequirements. A first time failure to complete such a work assignmentrequirement shall result in ineligibility to receive general assistance for aperiod fixed by such rules and regulations of not more than three calendarmonths. A subsequent failure to complete such a work assignment requirementshall result in a period fixed by such rules and regulations of ineligibilityof not more than six calendar months.
(4) If any person is found guilty of the crime of theft under the provisionsof K.S.A. 39-720, and amendments thereto, such person shall thereby becomeforever ineligible to receive any form of general assistance under theprovisions of this subsection (d) unless the conviction is the person's firstconviction under the provisions of K.S.A. 39-720, and amendments thereto, orthe law of any other state concerning welfare fraud. First time offendersconvicted of a misdemeanor under the provisions of such statute shall becomeineligible to receive any form of general assistance for a period of 12calendar months from the date of conviction. First time offenders convicted ofa felony under the provisions of such statute shall become ineligible toreceive any form of general assistance for a period of 60 calendar months fromthe date of conviction. If any person is found guilty by a court of competentjurisdiction of any state other than the state of Kansas of a crime involvingwelfare fraud, such person shall thereby become forever ineligible to receiveany form of general assistance under the provisions of this subsection (d)unless the conviction is the person's first conviction under the law of anyother state concerning welfare fraud. First time offenders convicted of amisdemeanor under the law of any other state concerning welfare fraud shallbecome ineligible to receive any form of general assistance for a period of 12calendar months from the date of conviction. First time offenders convicted ofa felony under the law of any other state concerning welfare fraud shall becomeineligible to receive any form of general assistance for a period of 60calendar months from the date of conviction.
(e) Requirements for medical assistance for which federal moneys orstate moneys or both are expended. (1) When the secretary hasadopted a medical care plan under which federal moneys or state moneys or bothare expended, medical assistance in accordance with such plan shall be grantedto any person who is a citizen of the United States or who is an alien lawfullyadmitted to the United States and who is residing in the state of Kansas, whoseresources and income do not exceed the levels prescribed by the secretary. Indetermining the need of an individual, the secretary may provide for income andresource exemptions and protected income and resource levels. Resources frominheritance shall be counted. A disclaimer of an inheritance pursuant to K.S.A.59-2291, and amendments thereto, shall constitute a transfer of resources. Thesecretary shall exempt principal and interest held in irrevocable trustpursuant to subsection (c) of K.S.A. 16-303, and amendments thereto, from theeligibility requirements of applicants for and recipients of medicalassistance. Such assistance shall be known as medical assistance.
(2) For the purposes of medical assistance eligibility determinations onor after July 1, 2004, if an applicant or recipient owns property in jointtenancy with some other party and the applicant or recipient of medicalassistance has restricted or conditioned their interest in such property to aspecific and discrete property interest less than 100%, then such designationwill cause the full value of the property to be considered an availableresource to the applicant or recipient.
(3) (A) Resources from trusts shall be considered when determiningeligibilityof a trust beneficiary for medical assistance. Medical assistance is to besecondary to all resources, including trusts, that may be available to anapplicant or recipient of medical assistance.
(B) If a trust hasdiscretionarylanguage, the trust shall be considered to be an available resource to theextent, using the full extent of discretion, the trustee may make any of theincome or principal available to the applicant or recipient of medicalassistance. Any such discretionary trust shall be considered an availableresource unless: (i) At the time ofcreation or amendment of the trust, the trust states a clear intent that thetrust is supplemental to public assistance; and (ii) the trust: (a) Is fundedfrom resources of a person who, at the time of such funding, owed no duty ofsupport to the applicant or recipient of medical assistance; or (b) is fundednot more than nominally from resources of a person while that person owed aduty of support to the applicant or recipient of medical assistance.
(C) For the purposes of this paragraph, "public assistance" includes, but isnot limited to, medicaid, medical assistance or title XIX of the socialsecurity act.
(4) (A) When an applicant or recipient of medical assistance is a party toa contract, agreement or accord for personal services being provided by anonlicensed individual or provider and such contract, agreement or accordinvolves health and welfare monitoring, pharmacy assistance, case management,communication with medical, health or other professionals, or other activitiesrelated to home health care, long term care, medical assistance benefits, orother related issues, any moneys paid under such contract, agreement or accordshall be considered to be an available resource unless the followingrestrictions are met: (i) The contract, agreement or accord must be in writingand executed prior to any services being provided; (ii) the moneys paid are indirect relationship with the fair market value of such services being providedby similarly situated and trained nonlicensed individuals; (iii) if nosimilarly situated nonlicensed individuals or situations can be found, thevalue of services will be based on federal hourly minimum wage standards;(iv) such individual providing the services will report all receipts of moneysas income to the appropriate state and federal governmental revenue agencies;(v) any amounts due under such contract, agreement or accord shall be paidafter the services are rendered; (vi) the applicant or recipient shall have thepower to revoke the contract, agreement or accord; and (vii) upon the death ofthe applicant or recipient, the contract, agreement or accord ceases.
(B) When an applicant or recipient of medical assistance is a party to awritten contract for personal services being provided by a licensed healthprofessional or facility and such contract involves health and welfaremonitoring, pharmacy assistance, case management, communication with medical,health or other professionals, or other activities related to home health care,long term care, medical assistance benefits or other related issues, any moneyspaid in advance of receipt of services for such contracts shall be consideredto be an available resource.
(5) Any trust may be amended if such amendment is permitted by the Kansasuniform trust code.
(f) Eligibility for medical assistance of resident receiving medicalcare outside state. A person who is receiving medical care includinglong-term care outside of Kansas whose health would be endangered by thepostponement of medical care until return to the state or by travel toreturn to Kansas, may be determined eligible for medical assistance if suchindividual is a resident of Kansas and all other eligibility factors aremet. Persons who are receiving medical care on an ongoing basis in along-term medical care facility in a state other than Kansas and who do notreturn to a care facility in Kansas when they are able to do so, shall nolonger be eligible to receive assistance in Kansas unless such medical careis not available in a comparable facility or program providing such medicalcare in Kansas. For persons who are minors or who are under guardianship,the actions of the parent or guardian shall be deemed to be the actions ofthe child or ward in determining whether or not the person is remainingoutside the state voluntarily.
(g) Medical assistance; assignment of rights to medical support andlimited power of attorney; recovery from estates of deceased recipients.(1) Except as otherwise provided in K.S.A. 39-786 and 39-787, and amendmentsthereto, or as otherwise authorized on and after September 30, 1989, undersection 303 and amendments thereto of the federal medicare catastrophiccoverage act of 1988, whichever is applicable, by applying for or receivingmedical assistance under a medical care plan in which federal funds areexpended, any accrued, present or future rights to support and any rights topayment for medical care from a third party of an applicant or recipient andany other family member for whom the applicant is applying shall be deemed tohave been assigned to the secretary on behalf of the state. The assignmentshall automatically become effective upon the date of approval for suchassistance without the requirement that any document be signed by the applicantor recipient. By applying for or receiving medical assistance the applicant orrecipient is also deemed to have appointed the secretary, or the secretary'sdesignee, as an attorney in fact to perform the specific act of negotiating andendorsing all drafts, checks, money orders or other negotiable instruments,representing payments received by the secretary in behalf of any personapplying for, receiving or having received such assistance. This limited powerof attorney shall be effective from the date the secretary approves theapplication for assistance and shall remain in effect until the assignment hasbeen terminated in full. The assignment of any rights to payment for medicalcare from a third party under this subsection shall not prohibit a health careprovider from directly billing an insurance carrier for services rendered ifthe provider has not submitted a claim covering such services to the secretaryfor payment. Support amounts collected on behalf of persons whose rights tosupport are assigned to the secretary only under this subsection and no othershall be distributed pursuant to subsection (d) of K.S.A. 39-756, andamendments thereto, except that any amounts designated as medical support shallbe retained by the secretary for repayment of the unreimbursed portion ofassistance. Amounts collected pursuant to the assignment of rights topayment for medical care from a third party shall also be retained by thesecretary for repayment of the unreimbursed portion of assistance.
(2) The amount of any medical assistance paid after June 30, 1992, underthe provisions of subsection (e) is (A) a claim against the property or anyinterest therein belonging to and a part of the estate of any deceasedrecipient or, if there is no estate, the estate of the surviving spouse, ifany, shall be charged for such medical assistance paid to either or both, and(B) a claim against any funds of such recipient or spouse in any account underK.S.A. 9-1215, 9-1216, 17-2263, 17-2264, 17-5828 or 17-5829, and amendmentsthereto. There shall be no recovery of medical assistance correctly paid to oron behalf of an individual under subsection (e) except after the death of thesurviving spouse of the individual, if any, and only at a time when theindividual has no surviving child who is under 21 years of age or is blind orpermanently and totally disabled. Transfers of real or personal property byrecipients of medical assistance without adequate consideration are voidableand may be set aside. Except where there is a surviving spouse, or a survivingchild who is under 21 years of age or is blind or permanently and totallydisabled, the amount of any medical assistance paid under subsection (e) is aclaim against the estate in any guardianship or conservatorship proceeding. Themonetary value of any benefits received by the recipient of such medicalassistance under long-term care insurance, as defined by K.S.A. 40-2227, andamendments thereto, shall be a credit against the amount of the claim providedfor such medical assistance under this subsection (g). The secretary isauthorized to enforce each claim provided for under this subsection (g). Thesecretary shall not be required to pursue every claim, but is granteddiscretion to determine which claims to pursue. All moneys received by thesecretary from claims under this subsection (g) shall be deposited in thesocial welfare fund. The secretary may adopt rules and regulations for theimplementation and administration of the medical assistance recovery programunder this subsection (g).
(3) By applying for or receiving medical assistance under the provisionsof article 7 of chapter 39 of the Kansas Statutes Annotated, such individual orsuch individual's agent, fiduciary, guardian, conservator,representative payee or other person acting on behalf of the individualconsents to the following definitions of estate and the results therefrom:
(A) If an individual receives any medical assistance before July 1, 2004,pursuant to article 7 of chapter 39 of the Kansas Statutes Annotated, whichforms the basis for a claim under subsection (g)(2), such claim is limited tothe individual's probatable estate as defined by applicable law; and
(B) if an individual receives any medical assistance on or after July 1,2004, pursuant to article 7 of chapter 39 of the Kansas Statutes Annotated,which forms the basis for a claim under subsection (g)(2), such claim shallapply to the individual's medical assistance estate. The medical assistanceestate is defined as including all real and personal property and other assetsin which the deceased individual had any legal title or interest immediatelybefore or at the time of death to the extent of that interest or title. Themedical assistance estate includes, without limitation assets conveyed to asurvivor, heir or assign of the deceased recipient through joint tenancy,tenancy in common, survivorship, transfer-on-death deed, payable-on-deathcontract, life estate, trust, annuities or similar arrangement.
(4) The secretary of social and rehabilitation services or the secretary'sdesignee is authorized to file and enforce a lien against the real property ofa recipient of medical assistance in certain situations, subject to all priorliens of record.The lien must be filedin the office of the register of deeds of the county where thereal property is located and must containthe legal description of all real property in the county subject to the lien.This lien is for payments of medical assistance madeby the department of social and rehabilitation services to the recipient who isan inpatient in a nursing home or other medical institution. Such lien may befiled only after notice and an opportunity for a hearing has been given. Suchlien may be enforced only upon competent medical testimony that the recipientcannot reasonably be expected to be discharged and returned home. A six-monthperiod of compensated inpatient care at a nursing home, nursing homes or othermedical institution shall constitute a determination by the department ofsocial and rehabilitation services that the recipient cannot reasonably beexpected to be discharged and returned home. To return home means the recipientleaves the nursing or medical facility and resides in the home on which thelien has been placed for a period of at least 90 days without being readmittedas an inpatient to a nursing or medical facility. The amount of the lien shallbe for the amount of assistance paid by the department of social andrehabilitation services after the expiration of six months from the datethe recipient became eligible for compensated inpatient care at a nursing home,nursing homes or other medical institution until the time of the filing of thelien and for any amount paid thereafter for such medical assistance to therecipient.
(5) The lien filed by the secretary or the secretary's designee for medicalassistance correctly received may be enforced before or after the death of therecipientby the filing of an action to foreclose such lien in the Kansas district courtor through an estate probate court action in the county where the real propertyof the recipient is located.However, it may be enforced only:
(A) After the death of the surviving spouse of the recipient;
(B) when there is no child of the recipient, natural or adopted, who is 20years of age or less residing in the home;
(C) when there is no adult child of the recipient, natural or adopted, who isblind or disabled residing in the home; or
(D) when no brother or sister of the recipient is lawfully residing in thehome, who has residedthere for at least one year immediately before the date of the recipient'sadmission to the nursing or medical facility, and has resided there on acontinuous basis since that time.
(6) The lien remains on the property even after a transfer of the title byconveyance, sale, succession, inheritance or will unless one of the followingevents occur:
(A) The lien is satisfied. The recipient, the heirs, personal representativeor assigns of the recipient may discharge such lien at any time by paying theamount of the lien to the secretary or the secretary's designee;
(B) the lien is terminated by foreclosure of prior lien of record orsettlement action taken in lieu of foreclosure;
(C) the value of the real property is consumed by the lien, at which timethe secretary or the secretary's designee may force the sale for the realproperty to satisfy the lien; or
(D) after a lien is filed against the real property, it will be dissolved ifthe recipient leaves the nursing or medical facility and resides in theproperty to which the lien is attached for a period of more than 90 dayswithout being readmitted as an inpatient to a nursing or medical facility,even though there may have been no reasonable expectation that this wouldoccur. If the recipient is readmitted to a nursing or medical facility duringthis period, and does return home after being released, another 90 days must becompleted before the lien can be dissolved.
(7) If the secretary of social and rehabilitation services or the secretary'sdesignee has not filed an action to foreclose the lien in the Kansas districtcourt in the county where the real property is located within 10 years from thedate of the filing of the lien, then the lien shall become dormant, and shallcease to operate as a lien on the real estate of the recipient. Such dormantlien may be revived in the same manner as a dormant judgment lien is revivedunder K.S.A. 60-2403 et seq., and amendments thereto.
(h) Placement under the revised Kansas code for care of children orrevised Kansas juvenile justicecode; assignment of support rights and limited power of attorney. In anycase in which the secretary of social and rehabilitation services pays for theexpenses of care and custody of a child pursuant toK.S.A. 2009 Supp.38-2201 et seq. or 38-2301 et seq., andamendments thereto, including theexpenses of any foster care placement, an assignment of all past, present andfuture support rights of the child in custody possessed by either parent orother person entitled to receive support payments for the child is, byoperation of law, conveyed to the secretary. Such assignment shall becomeeffective upon placement of a child in the custody of the secretary or uponpayment of the expenses of care and custody of a child by the secretary withoutthe requirement that any document be signed by the parent or other personentitled to receive support payments for the child. When the secretary paysfor the expenses of care and custody of a child or a child is placed in thecustody of the secretary, the parent or other person entitled to receivesupport payments for the child is also deemed to have appointed the secretary,or the secretary's designee, as attorney in fact to perform the specific act ofnegotiating and endorsing all drafts, checks, money orders or other negotiableinstruments representing support payments received by the secretary on behalfof the child. This limited power of attorney shall be effective from the datethe assignment to support rights becomes effective and shall remain in effectuntil the assignment of support rights has been terminated in full.
(i) No person who voluntarily quits employment or who is fired fromemployment due to gross misconduct as defined by rules and regulations of thesecretary or who is a fugitive from justice by reason of a felony conviction orcharge shall be eligible to receive public assistance benefits in this state.Any recipient of public assistance who fails to timely comply with monthlyreporting requirements under criteria and guidelines prescribed by rules andregulations of the secretary shall be subject to a penalty established by thesecretary by rules and regulations.
(j) If the applicant or recipient of aid to families with dependent childrenis a mother of the dependent child, as a condition of the mother's eligibilityfor aid to families with dependent children the mother shall identify by nameand, if known, by current address the father of the dependent child except thatthe secretary may adopt by rules and regulations exceptions to this requirementin cases of undue hardship. Any recipient of aid to families with dependentchildren who fails to cooperate with requirements relating to child supportenforcement under criteria and guidelines prescribed by rules and regulationsof the secretary shall be subject to a penalty established by the secretary byrules and regulations which penalty shall progress to ineligibility for thefamily after three months of noncooperation.
(k) By applying for or receiving child care benefits or food stamps, theapplicant or recipient shall be deemed to have assigned, pursuant to K.S.A.39-756 and amendments thereto, to the secretary on behalf of the state onlyaccrued, present or future rights to support from any other person suchapplicant may have in such person's own behalf or in behalf of any other familymember for whom the applicant is applying for or receiving aid.The assignment of support rights shall automatically become effective upon thedate of approval for or receipt of such aid without the requirement that anydocument be signed by the applicant or recipient. By applying for or receivingchild care benefits or food stamps, the applicant or recipient is also deemedto have appointed the secretary, or the secretary's designee, as an attorney infact to perform the specific act of negotiating and endorsing all drafts,checks, money orders or other negotiable instruments representing supportpayments received by the secretary in behalf of any person applying for,receiving or having received such assistance. This limited power of attorneyshall be effective from the date the secretary approves the application for aidand shall remain in effect until the assignment of support rights has beenterminated in full. An applicant or recipient who has assigned support rightsto the secretary pursuant to this subsection shall cooperate in establishingand enforcing support obligations to the same extent required of applicants foror recipients of aid to families with dependent children.
History: L. 1937, ch. 327, § 8a;L. 1939, ch. 200, § 2;L. 1947, ch. 266, § 1;L. 1949, ch. 275, § 1;L. 1951, ch. 288, § 3;L. 1953, ch. 220, § 1;L. 1955, ch. 236, § 2;L. 1957, ch. 269, § 1;L. 1961, ch. 230, § 1;L. 1963, ch. 255, § 3;L. 1965, ch. 287, § 1;L. 1967, ch. 245, § 3;L. 1968, ch. 380, § 1;L. 1969, ch. 226, § 3;L. 1973, ch. 186, § 5;L. 1976, ch. 210, § 2;L. 1978, ch. 159, § 3;L. 1980, ch. 125, § 1;L. 1981, ch. 186, § 1;L. 1982, ch. 90, § 2;L. 1982, ch. 185, §§ 1, 2;L. 1983, ch. 143, § 3;L. 1985, ch. 149, § 1;L. 1985, ch. 115, § 43;L. 1986, ch. 165, § 1;L. 1986, ch. 137, § 23;L. 1988, ch. 143, § 8;L. 1989, ch. 124, § 2;L. 1989, ch. 125, § 1;L. 1992, ch. 150, § 7;L. 1993, ch. 180, § 1;L. 1994, ch. 265, § 8;L. 2004, ch. 146, § 1;L. 2006, ch. 169, § 108;L. 2007, ch. 195, § 20;L. 2008, ch. 12, § 1; July 1.