Revision: May 13, 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.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 05/09/13
Amended 03/25/13
SB 138 FISCAL NOTE
AN ACT relative to support for certain residents of nursing and assisted living facilities.
FISCAL IMPACT:
The Department of Health and Human Services and the New Hampshire Association of Counties state this bill, as amended by the Senate (Amendments #2013-0732s and #2013-1062s), will increase county revenue by an indeterminable amount in FY 2014 and each year thereafter. There will be no fiscal impact on state, county and local expenditures, or state and local revenues.
The Office of Legislative Budget Assistant is awaiting information from the Department of Justice and the Judicial Branch relative to the potential fiscal impact of this bill as amended. The Department and the Branch were contacted on 03/25/2013 to provide the potential fiscal impact of the bill as amended and most recently on 05/03/2013.
METHODOLOGY:
The Department of Health and Human Services states this bill would allow assisted living facilities and nursing facilities to recover the cost of care provided from certain individuals. Recourse by the facilities would be limited to individuals who have received transfers of resources belonging to the person receiving assistance within 5 years of the assistance being provided if the transfer resulted in a period of Medicaid ineligibility, and to individuals who have a fiduciary responsibility with the individual and failed to promptly complete an application for Medicaid coverage or any other support program or insurance policy. In addition, the Department states reimbursement for the care provided would be at the applicable rate under Medicaid and the death of a person receiving assistance would not nullify or otherwise affect the joint and several liabilities of the individuals charged with the cost of care provided. The Department indicates in December 2012, there were 4,574 Medicaid recipients residing in nursing facilities and 263 pending nursing facility applications. The Department does not have information on the number of Medicaid recipients residing in assisted living facilities and is not able to determine how many individuals would be affected by this legislation. The Department assumes the legislation would be effective on July 1, 2013 and will have no fiscal impact on state revenues or expenditures. The Department states the legislation would allow county nursing facilities to recover the costs of providing care to an individual undergoing a penalty for transferring assets for less than fair market value or whose guardian or attorney-in-fact failed to apply for Medicaid or follow through with the Medicaid application. The Department is not able to estimate the potential impact on county revenue.
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 the bill may increase revenue that might otherwise be uncollectible for care that has already been provided. In addition, the Association states, since the amounts recovered would be at the applicable Medicaid rates, only a portion of the uncompensated care could be recovered.