Revision: Feb. 6, 2013, midnight
SB 138-FN – AS INTRODUCED
2013 SESSION
01/10
SENATE BILL 138-FN
AN ACT relative to support for certain residents of nursing and assisted living facilities.
SPONSORS: Sen. Forrester, Dist 2; Sen. Reagan, Dist 17; Sen. Hosmer, Dist 7; Sen. Sanborn, Dist 9; Sen. Gilmour, Dist 12; Rep. Cebrowski, Hills 7; Rep. LeBrun, Hills 32
COMMITTEE: Health, Education and Human Services
This bill allows an assisted living facility or nursing home facility in certain circumstances to pursue recovery of costs of care rendered to a client from certain relatives of the client when an application for Medicaid is not timely made or when the client is not able to receive Medicaid assistance due to the transfer of the clients assets within the 5-year Medicaid look-back period.
This bill is the result of 2012, 20 (SB 321-FN).
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
13-0902
01/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Thirteen
AN ACT relative to support for certain residents of nursing and assisted living facilities.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Public Assistance; Recovery. RSA 167:2 is repealed and reenacted to read as follows:
167:2 Liability for Support; Recovery.
I.(a) Assistance rendered under this chapter or RSA 161, or the costs of care rendered by an assisted living facility licensed under He-P 804 and 805 or nursing facility licensed under He-P 803, to anyone having a father, mother, stepfather, stepmother, son, daughter, husband or wife, whose weekly income or other resources are more than sufficient to provide a reasonable subsistence compatible with decency and health, may be recovered in an appropriate proceeding in the superior court brought by the commissioner of health and human services, in the name of the state or by the facility in its own name, from either a father, mother, stepfather, stepmother, son, daughter, husband or wife, who are declared jointly and severally liable for such costs of care and assistance. Notwithstanding any provision of law to the contrary, for the purposes of this section “the costs of care” shall include all costs of health care and lodging and all related costs, including transportation, medical, and personal care and any other costs, charges, and expenses incurred by the facility in rendering care to the person. Recourse under this section by an assisted living or nursing facility shall be limited to actions against:
(1) Such relatives who have received transfers of any interests or assets, personal or real, belonging in whole or in part to the person receiving assistance, within 5 years of the assistance rendered; or
(2) Any such relatives who are guardians of the recipient or agents under a power of attorney over the recipient and/or the recipient’s estate but who have failed to promptly complete and fully prosecute an application for the recipient for coverage under Medicaid or any other support program or insurance policy.
(b) Such action shall be brought by the attorney general or the county attorney for the county in which any such relative resides when so requested by the commissioner of health and human services, or shall be brought by the assisted living or nursing facility.
II. The death of the person receiving assistance shall not nullify or otherwise affect the joint and several liability of his or her relatives charged with the cost of the assistance rendered. Nothing contained in this section shall prohibit or otherwise diminish any other causes of action possessed by any such assisted living or nursing facility, this section being in addition to and not to the exclusion of any such other causes of action. An assisted living or nursing facility which prevails in an action brought pursuant to this section also shall be entitled to reasonable costs and attorney’s fees.
2 Public Assistance; Compelling Support. Amend RSA 167:3 to read as follows:
167:3 Compelling Support. Upon the request of the commissioner of health and human services, or an assisted living or nursing facility providing care, any such father, mother, stepfather, stepmother, son, daughter, husband or wife shall provide the support of the person assisted under this chapter or RSA 161, or contribute thereto. Should such relative refuse to comply with such request, the commissioner of health and human services or the assisted living facility or nursing facility may bring an appropriate proceeding in the superior court in the name of the state or facility to compel such support or contribution thereto. If upon hearing it shall appear that such relative is able to provide the support of such person or to contribute thereto, the court shall enter an order accordingly and shall fix the amount and method and manner of payment. Failure to comply with any such order, without good cause as determined by the court at a hearing, shall be deemed contempt of court and punished accordingly. Such proceedings shall be brought by the attorney general or the county attorney for the county in which any such relative resides when so requested by the commissioner of health and human services, or by the assisted living or nursing facility. However, no judgment obtained in any proceeding under this chapter shall be acted upon through execution, levy, or otherwise during the pendency of any actually completed and filed application for Medicaid or other support program or insurance policy coverage, and further provided that attachments and trustee process to secure any judgment or potential judgment shall be permitted subject to the discretion of the court, the intent hereof being to protect facilities from non-payment or from the failure of the person receiving care or assistance, or that person’s agents, to cooperate in obtaining Medicaid, other support program, or insurance coverage.
3 Public Assistance; Responsibility of Public Assistance. Amend RSA 167:3-b to read as follows:
167:3-b Responsibility for Public Medical Assistance. [The provisions of RSA 167:2, 3 and 3-a, do not apply to the administration of medical assistance, except with respect to the spouse of the individual who needs medical care or services, or the parent of such individual, if said individual is under the age of 21.] Notwithstanding any provision of law to the contrary, the provisions of RSA 167:2 and 3 shall apply to the extent that any action under such provisions is asserted by the attorney general, county attorney, or an assisted living or nursing facility, subject to the limitations stated in RSA 167:2. Assistance or the costs of care provided by an assisted living or nursing facility shall be reimbursable to the facility at an amount equivalent to the then-applicable rate under Medicaid. In addition, any rights pursuant to RSA 546-A of the person receiving care or assistance are hereby assigned to the assisted living or nursing facility for the purpose of securing reimbursement for past, present, and continuing support of the person receiving such care or assistance. Nothing contained in this section shall be construed to impose a duty of support by an assisted living or nursing facility in favor of any person.
4 Effective Date. This act shall take effect 60 days after its passage.
LBAO
13-0902
Revised 02/06/13
SB 138 FISCAL NOTE
AN ACT relative to support for certain residents of nursing and assisted living facilities.
FISCAL IMPACT:
The Department Justice, Judicial Branch, and New Hampshire Association of Counties state this bill, as introduced, may increase state and county expenditures and county revenue by indeterminable amounts in FY 2014 and in each year thereafter. There will be no fiscal impact on state revenue, or local revenue and expenditures.
METHODOLOGY:
The New Hampshire Association of Counties states this bill provides recourse for long-term care facilities to recover uncompensated care in instances where a non-paying resident has been found ineligible for Medicaid based on a previous transfer of assets to certain family members within 5 years of the assistance provided, or where an application for Medicaid coverage has not been filed. The Association states uncompensated care accounts for millions of dollars in county nursing home deficits statewide. The Association states this bill may increase revenue that might otherwise be uncollectible for care that has already been provided.
The Department of Justice states this bill provides for certain actions that can be brought by the Attorney General that are consistent with the current statute. The Department is not able to determine if additional recovery investigations and enforcement actions would be generated by the bill and cannot estimate the fiscal impact.
The Judicial Branch states the bill may result in additional recovery cases in the superior court. The Branch has no information to estimate how many additional proceedings would occur as a result of the changes contained in the bill to determine the fiscal impact on expenditures.
The Department of Health and Human Services states this bill would repeal and reenacted RSA 167:2 to allow nursing and assisted living facilities to recover the cost of care provided from certain family members through a proceeding in the superior court; amend RSA 167:3 to allow assisted living or nursing facilities to compel support from certain relatives through a proceeding in the superior court; and amend RSA 167:3-b to allow recoveries to include the recovery of the cost of medical assistance at the applicable Medicaid rate. Relatives include father, mother stepfather, stepmother, son, daughter, husband, or wife if the relative received transfers of assets from the recipient within 5 years of the assistance provided, or was a guardian or agent under a power of attorney of the recipient and failed to promptly apply for Medicaid or other insurance for the recipient. The Department indicates, in December 2012, there were 4,574 Medicaid recipients residing in nursing facilities, an unknown number of recipients residing in assisted living facilities, and 263 pending nursing facility applications. The Department is not able to determine how many individuals would be affected by this bill, but does not expect the bill will result in additional costs or savings to the state general fund.