Revision: March 22, 2013, midnight
SB 138-FN – AS AMENDED BY THE SENATE
03/21/13 0732s
03/21/13 1062s
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 entities or certain other persons 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 client’s 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/21/13 0732s
03/21/13 1062s
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 New Section; Liability for Costs of Care. Amend RSA 151-E by inserting after section 18 the following new section:
151-E:19 Support for Certain Residents of Nursing Homes and Assisted Living Facilities.
I. In this section:
(a) “Costs of care” means 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 individual.
(b) “Long term care facility” means a facility licensed by the department pursuant to He-P 803, 804, or 805.
(c) “Person” includes persons both natural and otherwise.
II. Persons who receive or who have received assets from an individual who is residing in, or who has resided in, a long-term care facility shall be liable to the long-term care facility for all costs of patient care up to the amount transferred to the person when that asset transfer has resulted in a final determination of asset transfer disqualification. The person shall be liable at the facility’s Medicaid rate for services for the period of asset transfer disqualification.
III. Persons who have a fiduciary relationship with an individual who resides in a long-term care facility shall be liable to the long-term care facility for all costs of patient care which are not covered by Medicaid due to any unreasonable failure to promptly and fully complete and pursue an application for coverage for the individual under Medicaid. The person shall be liable at the facility’s Medicaid rate for services for the period of liability. Any person who is an agent under a power of attorney over the individual or the individual’s assets, or is a guardian of the individual, or controls or has authority over the individual’s accounts, shall conclusively be deemed to be a fiduciary of the individual for purposes of this section. At least 30 days before filing an action pursuant to this paragraph, the facility shall send a written notice of its intent to file the action to any person whom it intends to name as a defendant in the action.
IV. Any person who possesses or controls the income or assets of an individual covered under Medicaid or Medicare who is residing in, or who has resided in, a long-term care facility shall be liable to the long-term care facility to the extent that any such person unreasonably fails to pay the patient liability amount due under Medicaid or the co-pay amount due under Medicare. At least 30 days before filing an action pursuant to this paragraph, the facility shall send a written notice of its intent to file the action to any person whom it intends to name as a defendant in the action.
V. 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. Attachments and trustee process to secure any judgment or potential judgment shall be permitted subject to the discretion of the court to protect facilities from non-payment or from the failure of the individual receiving care or assistance, or that individual’s agents, to cooperate in obtaining Medicaid, other support program, or insurance coverage.
VI. Nothing contained in this section shall prohibit or otherwise diminish any other causes of action possessed by any such long-term care facility. The death of the individual receiving assistance shall not nullify or otherwise affect the joint and several liability of the person or persons charged with the cost of care rendered or the patient liability amount or co-pays as referenced in this section. A long-term care facility which prevails in an action brought pursuant to this section also shall be entitled to its reasonable costs and attorney’s fees.
2 New Section; Liability for Care. Amend RSA 507 by inserting after section 8-h the following new section:
507:8-i Actions Under RSA 151-E:19. Under the circumstances set forth in RSA 151-E:19, a long-term care facility is entitled to recover for the costs of care of a current or former resident of the facility. The defendant in any such action shall be liable to the long-term care facility in the event that the factual elements of RSA 151-E:19 are established. Nothing contained in RSA 151-E or this section shall prohibit or otherwise diminish any other causes of action possessed by any such long-term care facility. A long-term care facility which prevails in an action brought pursuant to this section shall be entitled to its reasonable costs and attorney’s fees.
3 Effective Date. This act shall take effect upon 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.