CHAPTER 175
HB 691-FN-LOCAL – FINAL VERSION
30Mar2005… 0742h
20Apr2005… 1074h
20Apr2005… 1189h
20Jun2005… 1810eba
2005 SESSION
01/09
HOUSE BILL 691-FN-LOCAL
COMMITTEE: Health, Human Services and Elderly Affairs
This bill revises the medicaid program. Specifically some of the changes include:
I. Clarifying the law regarding eligibility for nursing facility services.
II. Clarifying entitlement to nursing facility care.
III. Revising the law regarding asset transfers preceding application for public assistance.
IV. Adding the category of aid to the needy blind for purposes of recovery of assistance.
V. Requiring the department of health and human services to seek certain medicaid waivers.
VI. Establishing a commission to develop a comprehensive state mental health plan.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
30Mar2005… 0742h
20Apr2005… 1074h
20Apr2005… 1189h
20Jun2005… 1810eba
05-0806
01/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Five
AN ACT relative to the medicaid program.
Be it Enacted by the Senate and House of Representatives in General Court convened:
175:1 Purpose and Intent.
I. The general court recognizes that the demand upon the medicaid system will increase sharply in the near future due to the rapid aging of the population and the increasing numbers of citizens 85 years of age and older. These facts coupled with an anticipated federal reduction in medicaid funding require a more cost-effective system to ensure that the state has the ability to meet the needs of its citizens while providing quality care to medicaid recipients.
II. The purpose of this act is to carry out the proposals contained in the plan for the modernization of the medicaid program administered by the department of health and human services as it relates to the provision of long-term care. This act is written to strengthen the commitment of the state to its people, for the provision of long-term care within an established continuum of care of home and community-based care, intermediate or mid-level care, and nursing facility care. The plan provides for a basic health care system for elderly or disabled persons who are poor, are without the means for obtaining long-term care services, and are in need of transitional or long-term support in order to achieve or maintain an identified degree of independence, self-sufficiency, health, or quality of life. The plan also provides a new emphasis on maintaining our elderly in home and community-based care through the empowerment of consumer choice. A basic intent underlying this proposal is that medicaid funding is reserved for those qualified individuals who need it and those who are not eligible are excluded.
175:2 Long-Term Care; Eligibility for Nursing Facility Services. Amend RSA 151-E:3, I(a) to read as follows:
(a) Clinically eligible for nursing facility care because the person requires 24-hour care for one or more of the following purposes, as determined by [the department] registered nurses employed by state or county government using an assessment tool:
(1) Medical monitoring and nursing care when the skills of a licensed medical professional are needed to provide safe and effective services;
(2) Restorative nursing or rehabilitative care with patient-specific goals;
(3) Medication administration [or instruction and supervision of self-medication for discharge purposes only] by oral, topical, intravenous, intramuscular, or subcutaneous injection, or intravenous feeding for treatment of recent or unstable conditions requiring medical or nursing intervention; or
(4) Assistance with 2 or more activities of daily living involving eating, toileting, transferring, bathing, dressing, and continence; and
175:3 Long-Term Care; Nursing Facility Services. Amend RSA 151-E:4 to read as follows:
151-E:4 Consumer Choice. A person who has been determined to be medicaid eligible for nursing facility services in accordance with RSA 151-E:3 shall have the right to receive nursing facility services; however, the person shall be offered and may choose to receive services in a less restrictive setting if such services are available and do not result in costs to the state and counties in excess of the limitations set forth in RSA 151-E:11, II. Such choice shall be [subject to limitations imposed by federal and state laws and regulations] offered in accordance with state laws and federal regulations. The department shall take into consideration the family and community supports available to the person, the family’s desire and ability to care for the person, and shall ensure that all consideration and support is offered to the family to maintain the person in home and community-based care. Nothing in this section is intended to require the provision of financial assistance or supports by a family member.
175:4 Eligibility for Assistance; Asset Transfers. Amend RSA 167:4, I(b) to read as follows:
(b) In the case of an applicant for public assistance or medical assistance who has made an assignment or transfer of [property] assets to an individual for less than fair market value within [36] 60 months or in the case of [payments from] transfers of real estate, or transfers of assets to a trust or portions of a trust that are treated as assets disposed of by the individual within 60 months immediately preceding the date of application or while the application is pending, or in the case of a recipient of public assistance or medical assistance who makes such an assignment or transfer while in receipt of the assistance, the assistance sought shall only be granted or continue to be granted in accordance with rules establishing restrictions and eligibility criteria for such cases as adopted by the commissioner of the department of health and human services under RSA 541-A, subject to applicable federal regulations and waiver approval, if any, and review by the oversight committee on health and human services, established in RSA 126-A:13. The oversight committee on health and human services shall make a report to the legislative fiscal committee which shall have final approval authority.
175:5 Eligibility for Assistance; Medicaid. Amend RSA 167:4, IV(c) to read as follows:
(c) Notwithstanding any provision of law to the contrary, for purposes of medicaid eligibility, investment in life insurance policies with cash surrender value in excess of $1,500 shall be limited to policies that ensure payment to the state of New Hampshire of all the proceeds of the policy in excess of amounts spent on burial up to the total of medicaid expenditures made on behalf of the individual.
(d) Contingent upon federal approval, the commissioner shall establish a program to eliminate the resource ceiling for applicants and recipients of medical assistance at the institutional level of care if the applicant or recipient benefits from or will benefit from a conforming long-term care insurance policy. The commissioner shall establish criteria for conforming long-term care insurance policies which, at a minimum, shall provide benefits for at least 36 months of nursing home payments at the average private pay rate for county nursing home facilities, an annual benefit inflation factor of at least 5 percent compounded annually, and coverage for home and community-based care equivalent to the benefit provided in a nursing facility. The estates of recipients of medical assistance for institutional level of care for whom the resource ceiling has been eliminated, shall be exempt from recoveries pursuant to RSA 167:13 and RSA 167:14.
(e) The commissioner of the department of health and human services shall adopt rules, pursuant to RSA 541-A, relative to the proper administration of this paragraph.
175:6 Recovery for Assistance Furnished. Amend RSA 167:13, I to read as follows:
I. Except as provided in paragraph II, if at any time during the continuance of assistance, the recipient or the husband or wife of the recipient becomes possessed of any property or income in excess of the amount stated in the application, it shall be the duty of the recipient within 10 calendar days to notify the commissioner of the department of health and human services of the receipt or possession of such property or income. On the death of a recipient of old age assistance, aid to the needy blind, medicaid for employed adults with disabilities, or aid to the permanently and totally disabled, the total amount of assistance paid under this chapter or RSA 161 shall be allowed as a claim against the estate of such person after payment of the charges in the priority set forth in RSA 554:19. No lien filed in accordance with RSA 167:14 shall be extended to enforce recovery nor shall any sale be forced against the real estate of a recipient of old age assistance, aid to the needy blind, medicaid for employed adults with disabilities, or aid to the permanently and totally disabled while it is occupied as a home by a surviving spouse. The federal government shall be entitled, as long as required as a condition to federal financial participation, to such proportion of the net amount collected from the estate of a recipient of old age assistance, aid to the needy blind, medicaid for employed adults with disabilities, or aid to the permanently and totally disabled as the federal participation bears to the total amount of assistance granted said recipient.
175:7 Assistance; Claims and Liens. Amend RSA 167:14, I to read as follows:
I. The estate of every recipient and the estate of a recipient’s spouse, if any, owned severally or as joint tenants, shall be liable for all financial old age assistance, aid to the needy blind, or aid to the permanently and totally disabled granted to the recipient; provided, however, that the estate of a recipient’s spouse shall be liable only for such financial assistance as was granted to the recipient during the time that the recipient and the recipient’s spouse were neither legally separated nor divorced. After providing all owners of the real property known to the department with prior notice and an opportunity for a hearing, the commissioner of the department of health and human services shall file with the register of deeds of the county in which the recipient, or the spouse of the recipient, if any, owns real property, notice of the lien. Such notice of lien shall contain the names of the recipient and the recipient’s spouse, if any. All such liens shall continue during the lifetime of the recipient and of the spouse of the recipient, if any, and until enforced as provided in this section, unless sooner released by the commissioner of the department of health and human services. The register of deeds shall keep a suitable record of such notices of lien without charging any fee therefore and enter on the record an acknowledgment of satisfaction or release upon written request from the commissioner of the department of health and human services.
175:8 Recovery of Assistance. Amend RSA 167:14-a, I and II to read as follows:
I. Any person who is a recipient of financial assistance, medical assistance, old age assistance, aid to the needy blind, medicaid for employed adults with disabilities, or aid to the permanently and totally disabled shall, by his acceptance of such assistance, be deemed to have assigned any claim or right of action against any person or party to the commissioner of health and human services, to the extent that such assistance is furnished.
II. Whenever a recipient of financial assistance, medical assistance, old age assistance, aid to the needy blind, medicaid for employed adults with disabilities, or aid to the permanently and totally disabled shall have a legally cognizable claim against any person or party for expenses or support and the department of health and human services has already furnished assistance to such recipient, the amount of assistance furnished may be recovered in an action brought in the name of the state from such person or party against whom the recipient has a legally cognizable claim for expenses or support.
175:9 New Paragraph; Recovery of Assistance; Estates of Recipients. Amend RSA 167:14-a by inserting after paragraph V the following new paragraph:
VI. For purposes of recovering the costs of medical assistance, the estate of a recipient shall include all property, real or personal, which at the time of a recipient’s death was held by the recipient in joint tenancy with rights of survivorship, tenancy in common, life estate, or living trust, without regard to the date that such title or interest was established. No sooner than 45 days from the death of the recipient, the department shall provide the other joint owner or owners notice of the department’s claim. Within 30 days of the receipt of notification of the department’s claim, the joint owner or owners shall acknowledge receipt of the department’s claim and, provided that there shall not be undue hardship imposed upon the surviving joint owner or owners, either tender an amount equal to the deceased recipient’s interest in the identified property and/or financial instrument to the state of New Hampshire toward the deceased’s medical assistance bill, but such amount shall not exceed the total amount of medical assistance provided to the deceased recipient, or enter into a binding agreement to make such payment as soon as is practicable. If the joint owner or owners refuse to acknowledge receipt of the department’s claim or to tender payment or fail to fulfill the agreement to pay without good cause, as required by this paragraph, the commissioner may bring an action in superior court to compel such payment. Nothing in this paragraph shall be interpreted or applied so as to violate RSA 167:16-a, IV or 42 U.S.C. section 1396p(b)(2)(A) prohibiting recovery when the recipient is survived by a spouse, minor children, or disabled children.
175:10 Prescription Drugs; Organization of Drugs. Amend RSA 318:42, XIII to read as follows:
XIII. A nurse licensed under RSA 326-B, who is an employee of a [home health care or hospice agency] health facility licensed pursuant to RSA 151:2 and is acting in the course of employment, from organizing the prescription and nonprescription drugs of clients into containers designed to aid clients in carrying out a prescriber’s directions, provided that the organizing of drugs is documented in the client’s nursing record and that the original prescription containers remain in the client’s possession.
175:11 New Subparagraph; Confidentiality of Records; Disclosure to Department of Health and Human Services. Amend RSA 21-J:14, V(d) by inserting after subparagraph (7) the following new subparagraph:
(8) An officer or employee of the department of health and human services in the performance of duties under RSA 167:14-a, V, which disclosure shall be limited to the report of the trust and a copy of the trust document, including any list of beneficiaries, filed in accordance with RSA 87:20.
175:12 New Section; Medicaid Waivers. Amend RSA 126-A by inserting after section 4-a the following new section:
126-A:4-b Medicaid Waivers. The state shall enter into medicaid waivers from the federal Centers for Medicare and Medicaid Services, subject in each case to a review by the oversight committee on health and human services, established in RSA 126-A:13, which shall make a report to the legislative fiscal committee which shall have final approval authority. The waivers shall:
(a) Allow the state to begin the penalty period of ineligibility for medicaid services due to transfers of assets for less than fair market value as of the date of application for medical assistance or as of the date that the applicant, but for the transfer of assets for less than fair market value, meets all of the criteria for eligibility for medical assistance, whichever is later.
(b) Allow the state to eliminate the resource ceiling for applicants for medical assistance and to exempt them from actions for recovery against their estates for the cost of medical assistance they receive when they have a long-term care insurance policy that meets the standards established by the legislature and the state.
175:13 Long-Term Care; Cost Controls; Limitation on Waiver Slots. Amend RSA 151-E:11 to read as follows:
151-E:11 Program Management and Cost Controls.
I. The department shall designate in its operating budget requests specific class lines for nursing facility, mid-level, and home-based care provided for in this chapter. These class lines shall reflect, and the requesting documentation shall include, the anticipated number of persons to receive services. The department shall not increase expenditures in approved budgets for [care] these class lines or the number of persons to receive mid-level or home care services without the approval of the legislative fiscal committee, and the prior review of the county-state finance commission. The medicaid rates paid for nursing facility services, mid-level care services, and home and community-based care services shall not be reduced below those levels in effect on the last day of the previous biennium. No transfers may be made from the nursing facility medicaid quality incentive program and all funding derived from that program shall be paid to nursing facilities.
II. For the fiscal year beginning July 1, 2003, and each fiscal year thereafter the average annual cost for the provision of services to persons in the mid-level of care shall not exceed 60 percent of the average annual cost for the provision of services in a nursing facility. The average annual cost for the provision of services in home-based care shall not exceed 50 percent of the average annual cost for the provision of services to persons in a nursing facility. Average annual costs shall be the net medicaid costs exclusive of provider payments. No person whose costs would be in excess of 80 percent of the average annual cost for the provision of services to a person in a nursing facility shall be approved for home-based or mid-level services without the prior approval of the commissioner of health and human services. The department shall provide a report semi-annually on the utilization of non-nursing home services to the county-state finance commission and the legislative fiscal committee.
175:14 Applicability. Pending federal Centers for Medicare and Medicaid Services approval required under section 4 of this act and notwithstanding RSA 167:4, I(b) or any other provision of law to the contrary, any applicant for public assistance or medical assistance who has made an assignment or transfer of assets to an individual for less than fair market value or who has transferred real estate or transferred assets to a trust relying on the 3-year or 5-year look back provision under RSA 167:4 and which is in existence on March 14, 2005 shall be grandfathered.
175:15 Commission Established. There is hereby established a commission to develop a comprehensive state mental health plan as recommended by the President’s New Freedom Commission on Mental Health. The purpose of the commission is to create a 5-year strategy to deliver mental health services that are founded on the principles of resiliency and recovery, evidence-based practice, effectiveness and efficiency. The plan shall also focus on the integration of the mental health system with other systems of care, including the developmental services system and the elder care system.
175:16 Membership and Compensation.
I. The members of the commission shall be as follows:
(a) Three members of the house of representatives, 2 of whom shall be members of the house committee on health, human services and elderly affairs, appointed by the speaker of the house of representatives.
(b) Three members of the senate, appointed by the president of the senate.
(c) Two members representing community mental health centers, one of whom shall be a board member, appointed by the Community Behavioral Health Association.
(d) The commissioner of the department of health and human services, or designee.
(e) The director of the division of community-based care services of the department of health and human services, or designee.
(f) The superintendent of New Hampshire hospital.
(g) The superintendent of the Glencliff home for the elderly.
(h) The chief of the bureau of behavioral health, department of health and human services.
(i) The director of the office of consumer affairs, department of health and human services.
(j) The executive director of the National Alliance for the Mentally Ill (NAMI).
(k) The executive director of the governor’s commission on disability, or designee.
(l) Two members representing consumers utilizing mental health services, appointed by the governor.
(m) Two members representing families utilizing mental health services, appointed by the governor.
(n) The director, office of alcohol and drug policy, department of health and human services.
(o) A psychiatrist, appointed by the New Hampshire Psychiatric Society.
(p) The medical director, bureau of behavioral health, department of health and human services.
(q) Two members representing peer support agencies, one of whom shall be a board member, appointed by the Consumer Council.
(r) The commissioner of the department of corrections, or designee.
(s) The superintendent of a county house of corrections, appointed by the governor.
(t) A member of the West Institute, appointed by the Dartmouth Psychiatric Research Center.
(u) The dean of the university of New Hampshire, school of health sciences.
II. Legislative members of the commission shall receive mileage at the legislative rate when attending to the duties of the commission.
III. The commission may seek grant funding support to carry out its duties.
175:17 Duties. The commission shall review and study the mental health service delivery system and make recommendations regarding:
I. The role and mission of New Hampshire hospital and Glencliff home for the elderly.
II. The role and mission of community mental health centers as providers of comprehensive behavioral health services and supports, including a range of residential services.
III. The role and mission of peer support programs.
IV. The role and mission of family mutual support organizations.
V. The integration of services for persons who have both mental illness and problems with substance abuse.
VI. The implementation of evidence-based standards of care and treatment.
VII. The promotion of research to improve the treatment of mental illness.
VIII. The utilization of local community hospitals to provide short-term stabilization of mental health crises.
IX. The development of regional transitional housing.
X. The availability of mental health treatment in prisons and jails.
XI. The integration of mental and physical health care.
XII. Other matters related to the delivery of mental health services.
175:18 Chairperson; Quorum. The members of the commission shall elect a chairperson from among the members. The first meeting of the commission shall be called by the first-named house member. The first meeting of the commission shall be held within 45 days of the effective date of this section. Twelve members of the commission shall constitute a quorum. The bureau of behavioral health shall provide administrative support to the commission.
175:19 Report. The commission shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the senate president, the house clerk, the senate clerk, the governor, and the state library in an interim report on or before December 1, 2005 and in a final report on or before December 1, 2006.
175:20 Oversight Committee on Health and Human Services; Duty Added. Amend RSA 126-A:15, I to read as follows:
I. The committee shall provide legislative oversight of and informational meetings on the programs, policies, and rules of the department of health and human services as brought to its attention by committee members, legislators, department personnel, or others. The committee’s work may include, but is not limited to, analyzing the efficacy of selected programs, studying the characteristics of target populations, researching trends affecting program costs and participation, and reviewing alternate approaches to programmatic and administrative concerns. The committee shall monitor the on-going medicaid modernization plan. The committee shall provide informational meetings on such topics to the general court. The committee shall maintain communications with the department of health and human services, and any other departments, as necessary to accomplish its work.
175:21 New Paragraph; Eligibility for Nursing Services. Amend RSA 151-E:3 by inserting after paragraph II the following new paragraph:
III. The department shall not use a new assessment tool to determine clinical eligibility for nursing facility care until the tool has been reviewed by the county-state finance commission and has been approved by the oversight committee on health and human services established pursuant to RSA 126-A:13.
175:22 Eligibility for Nursing Services. Amend RSA 151-E:3, I(a) to read as follows:
(a) Clinically eligible for nursing facility care because the person requires 24-hour care for one or more of the following purposes, as determined by [registered nurses employed by state or county government using an assessment tool] the department:
(1) Medical monitoring and nursing care [when the skills of a licensed medical professional are needed to provide safe and effective services];
(2) Restorative nursing or rehabilitative care [with patient-specific goals];
(3) Medication administration [by oral, topical, intravenous, intramuscular, or subcutaneous injection, or intravenous feeding for treatment of recent or unstable conditions requiring medical or nursing intervention] or instruction and supervision of self-medication for discharge purposes only; or
(4) Assistance with 2 or more activities of daily living [involving eating, toileting, transferring, bathing, dressing, and continence]; and
175:23 Administration of the Medicaid Home and Community-Based Care Waiver Program for the Elderly and Chronically Ill.
I. The department of health and human services may establish one or more pilot programs for the provision of case management services through a program operated by or under contract with a county government to persons receiving services under the medicaid home and community-based care waiver program for the elderly and chronically ill. The cases to be served in the pilot program may be directly assigned to the county program or transferred from the independent case management agencies to which they have already been assigned.
II. The department shall make quarterly reports to the oversight committee on health and human services commencing January 1, 2006 on the operations and results of any pilot program established pursuant to this section, particularly with respect to any comparisons that may be made to the services of independent case management agencies.
175:24 Rulemaking. Any rules required to be adopted by the department of health and human services under this act pursuant to RSA 541-A, shall be produced by the department for review by the oversight committee on health and human services within 180 days after passage of the appropriate section of this act.
175:25 Effective Date.
I. Section 2 of this act shall take effect January 1, 2006.
II. Sections 15-19 of this act shall take effect upon its passage.
III. Section 22 of this act shall take effect July 1, 2007.
IV. The remainder of this act shall take effect 60 days after its passage.
(Approved: Enacted in accordance with Art. 44, Part II of N.H. Constitution, without signature of Governor, June 30, 2005.)
(Effective Date: I. Section 2 shall take effect January 1, 2006
II. Sections 15-19 shall take effect June 30, 2005
III. Section 22 shall take effect July 1, 2007
IV. Remainder shall take effect August 29, 2005.)