Revision: May 23, 2013, midnight
SB 138-FN – AS AMENDED BY THE HOUSE
03/21/13 0732s
03/21/13 1062s
22May2013… 1610h
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.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.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
22May2013… 1610h
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 resident.
(b) “Department” means the department of health and human services.
(c) “Fiduciary” means a person to whom power or property has been formally entrusted for the benefit of another such as an attorney-in-fact, legal guardian, trustee, or representative payee.
(d) “Long-term care facility” means a facility licensed by the department pursuant to He-P 803, 804, or 805.
(e) “Patient liability amount” means the amount of income that a resident is liable to contribute toward the cost of his or her nursing facility care.
(f) “Person” includes persons both natural and otherwise, including, without limitation, any corporation, partnership, limited liability company, trust or other entity.
(g) “Resident” refers to any person who inhabits or inhabited a long-term care facility for any period of time.
II.(a) Except as provided in subparagraph (b), when an asset transfer made on or after the effective date of this section results in a final determination of a Medicaid asset transfer disqualification, the person who received the assets from a resident which resulted in the Medicaid asset transfer disqualification shall be liable under this section to the long-term care facility for all costs of care up to the amount transferred to the person. The person shall be liable at the facility’s Medicaid rate for services for the period of asset transfer disqualification.
(b) It shall be an affirmative defense in any action instituted under subparagraph (a), that the transfer of the asset which resulted in a final determination of a Medicaid asset transfer disqualification was not a disqualifying transfer under 42 U.S.C. 1396p. The court’s decision regarding such affirmative defense shall be made independently of the determination made by the department. If that affirmative defense is proven, the person shall not be liable under subparagraph (a).
III. A fiduciary who possesses or controls the income or assets of a resident of a long-term care facility and has the authority and duty to file an application for Medicaid on behalf of a resident shall be liable under this section to the long-term care facility for all costs of care which are not covered by Medicaid due to the fiduciary’s negligence in failing to promptly and fully complete and pursue an application for Medicaid benefits for the resident. Upon a finding of negligence, the fiduciary shall be liable to the facility for the costs of care at the facility’s Medicaid rate for services for the period of resulting noncoverage. 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. In any claim of negligence against a legal guardian, notice of intent to file the action shall simultaneously be provided to the probate court having jurisdiction over the guardianship. The probate court shall have jurisdiction over any action alleging negligence of a legal guardian, and shall, in any such action, consider whether removal of the guardian is in the ward’s best interests in accordance with RSA 464-A:39, I(c) and shall have the authority to assess liability and award damages under this section.
IV. Any fiduciary or person who has received authority over the income of a resident such as a person who has been given or otherwise obtained authority over a resident’s bank account, has been named as or has rights as a joint account holder, or otherwise has obtained or received any control over a resident’s bank account or any other income of a resident, shall be liable under this section to the long-term care facility to the extent that any such person or fiduciary refuses to pay the patient liability amount due under Medicaid, provided that the person or fiduciary is in receipt of written notice from the department of the patient liability amount at the time such income is received by the fiduciary or person, and provided further that the liability of the person or fiduciary shall be for amounts going forward from the receipt of the notice. 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 or fiduciary 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. 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 resident, or that resident’s fiduciary, to cooperate in obtaining Medicaid.
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 resident shall not nullify or otherwise affect the liability of the person or persons charged with the cost of care rendered or the patient liability amount as referenced in this section.
VII. A fiduciary under this section shall not be personally liable for the acts or omissions of the fiduciary’s predecessor, if any, solely by reason of his or her role as successor fiduciary.
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. The defendant in any action brought under RSA 151-E:19 shall be liable to the long-term care facility as provided in RSA 151-E:19. An action under RSA 151-E:19 shall be tried by bench trial. 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.
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.