Revision: March 8, 2016, midnight
\t \t\tSB 127-FN - AS AMENDED BY THE SENATE
02/04/2016 0236s
2015 SESSION
\t15-0940
\t01/09
SENATE BILL\t\t127-FN
AN ACT\trelative to the appointment of special Medicaid representatives.
COMMITTEE:\tHealth and Human Services
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AMENDED ANALYSIS
\tThis bill authorizes the appointment of special Medicaid representatives. Under this bill, special Medicaid representatives may be appointed to assist persons in long-term care facilities or hospitals fill out Medicaid applications required by the department of health and human services.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
02/04/2016 0236s\t15-0940
\t01/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fifteen
AN ACT\trelative to the appointment of special Medicaid representatives.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Chapter; Special Medicaid Representatives. Amend RSA by inserting after chapter 151-H the following new chapter:
CHAPTER 151-I
Special MedicAId RepresentATives
\t151-I:1 Definitions. In this section:
\t\tI. “Care facility” means a long-term care facility licensed pursuant to He-P 803, 804, or 805 or “health care facility,” “hospital” or “rehabilitation facility”, as defined in RSA 151-C:2, XV-a, XX, and XXXIII.
\t\tII. “Court” means the circuit court-probate division.
\t\tIII. “Department” means the department of health and human services.
\t\tIV. “Medicaid applicant” means the person and his or her agent, who applies for Medicaid benefits in accordance with a demand made pursuant to RSA 151-I:2.
\t\tV. “Person” means the patient or resident of a care facility from whom a completed Medicaid application is sought or for whom a special Medicaid representative is requested for the purpose of submitting a Medicaid application.
\t\tVI. “Special Medicaid representative” means an individual or entity appointed by the court to collect the information necessary and to complete and process an application for Medicaid with the department of health and human services.
\t151-I:2 Special Medicaid Representatives.
\t\tI. If a person in a care facility has not demonstrated an ability to pay the costs of care through personal funds, Medicare, private health or long-term care insurance, the Affordable Care Act, or other third party arrangement, and the care facility in good faith believes that the person may be eligible for Medicaid benefits:
\t\t\t(a) The care facility may send out a written demand signed by the duly-authorized representative of the care facility. The demand shall be sent to the person, the person’s spouse, and any of the person’s known agents including without limitation guardians, conservators, agents under powers of attorney, or any contractually responsible family members, by certified mail, return receipt requested, to their last known address. However, where the person notifies the care facility that he or she has a reasonable and credible fear of harm if the spouse is notified, no demand or notice to the spouse shall be required. For the purposes of this section, any refusal to receive or accept the demand shall be deemed constructive receipt.
\t\t\t(b) The person or one of the person’s agents shall file a Medicaid application within 10 business days of the receipt of the demand. The application shall be in a form sufficient to be accepted to begin processing by the department but does not need to be completed to the degree that it is ready for an eligibility determination by the department. A contemporaneous notice and copy of the application shall be provided to the care facility, the person’s spouse, and any of the person’s known agents, by certified mail, return receipt requested.
\t\t\t(c) If the person or the person’s agents comply and file the Medicaid application as required under subparagraph (b), they shall cooperate with the care facility in executing authorizations in favor of the care facility including, but not limited to, authorizing the care facility to communicate with the department regarding the Medicaid application and otherwise cooperate in obtaining any additional financial and asset information required by the department to complete and process the Medicaid application such that it is sufficiently complete for the department to make an eligibility determination; provided, however, that the care facility shall minimize to the extent possible the number of authorized employees who work on the application or have access to the person’s financial and asset information. The employees of the facility shall have a duty to preserve the confidentiality of the information, except to the extent necessary for the filing of the Medicaid application. The department shall promptly respond to any inquiries by the person, the person’s legal agent, or an authorized care facility as to the status of the Medicaid application.
\t\t\t(d) If the care facility does not receive confirmation of the filing of a Medicaid application within 10 days of the demand to the person and any of the person’s agents, then the care facility may petition the court for the appointment of a special Medicaid representative.
\t\t\t(e) If the Medicaid applicant or care facility is attempting in good faith to obtain financial and asset information held by a third party required by the department to process the application but is being prevented, hindered, or delayed from obtaining such information from that third party, the department shall not deny the application for failure to timely comply with its demands for information or documentation.
\t\t\t(f) In those instances where the Medicaid applicant or care facility seeks financial or asset information from an individual or entity, the individual or entity shall respond and produce the requested information to the extent that the individual or entity is in possession of such information no later than 30 days after receipt of the request, unless the individual or entity can show good cause in writing to the Medicaid applicant or care facility why more time is required or why it should not have to produce some or all of the information.
\t\t\t(g) Individuals or entities responding to a request for information from a Medicaid applicant or care facility pursuant to this section shall only be permitted to charge reasonable costs of responding, including no more than $.25 per page for copying. If an individual or entity fails to respond within 30 days, then it shall forfeit any right to reimbursement for responding or copying or related costs.
\t\t\t(h) When the Medicaid applicant or the care facility believe that the Medicaid application is ready for an eligibility determination and so notify the department, the department shall state with specificity the information that still needs to be provided, or else act on the application within 90 days.
\t\tII.(a) Except in those instances where the court has already commenced a guardianship of the estate or the person or conservatorship as described under subparagraph (c), when the Medicaid applicant and, where applicable and required, the person’s spouse, fails to cooperate in the Medicaid application process, the care facility may petition the court for the appointment of a special Medicaid representative for the limited purpose of applying for Medicaid for the person. The petition shall include the names and addresses of any current agents under any power of attorney over the person or the person’s finances and assets, as known to the care facility and shall also include the following information:
\t\t\t\t(1) The name, address, corporate or agency status of the petitioning care facility and its connection with or relationship to the person.
\t\t\t\t(2) The name, age, and address of the person.
\t\t\t\t(3) The names and addresses of adult spouses, parents, children and siblings of the person, so far as they are known to the care facility.
\t\t\t\t(4) The name, address, occupation and relationship to the person, if any, of the proposed special Medicaid representative.
\t\t\t\t(5) The name and address of counsel, if any, for the person.
\t\t\t(b) The care facility shall file a statement with the petition containing facts demonstrating the need for the appointment of a special Medicaid representative which shall include an affidavit of a duly-authorized representative of the care facility demonstrating the basis for its belief that a Medicaid application is necessary, and that the demand has been provided to the person or any agents of the person, and that neither the person nor any of the person’s agents have filed a Medicaid application with the department that meets the requirements of subparagraph I(b).
\t\t\t(c) If the court has already commenced a guardianship of the estate or the person or a conservatorship, the care facility shall petition the court in that proceeding for relief compelling the guardian or conservator to submit and complete the Medicaid application.
\t\tIII. A special Medicaid representative shall have the authority to request and receive from any individuals or entities, including any government entities and financial institutions, and to compile and report in the form of a Medicaid application, all information required by the department to determine the person’s eligibility for Medicaid, and shall have the duty to expeditiously submit, complete, and prosecute such application. The Medicaid applicant and the care facility shall have a duty to cooperate with the special Medicaid representative. Any individual or entity receiving a request from such special Medicaid representative shall comply with the request no later than 30 days after receipt of such request to the extent that the individual or entity is in possession of such information, unless the individual or entity can show good cause in writing why more time is required or why it should not have to produce some or all of the information. If the individual or entity fails to comply with the request for information, the special Medicaid representative may notify the court of that failure with notice to the individual or entity by certified mail, return receipt requested, and the court may issue such orders as appropriate for the failure to respond. The special Medicaid representative shall provide contemporaneous notice to the person, the person’s spouse, and the person’s agents of any such request for information, by certified mail, return receipt requested. However, where the person notifies the court that the person has a reasonable and credible fear of harm if the spouse is notified, no notice to the spouse shall be required.
\t\tIV.(a) Within 10 days of the filing of the petition, the court shall issue orders of notice to the person, the person’s spouse, and any of the person’s known agents as provided to the court which shall contain:
\t\t\t\t(1) The date, time, and place set for the hearing on the petition, which hearing shall take place no later than 40 days from the filing of the petition.
\t\t\t\t(2) The deadline by which any interested parties shall file an objection to the petition.
\t\t\t\t(3) Information regarding the purpose of the appointment of a special Medicaid representative.
\t\t\t\t(4) Information regarding the rights of the person or the person’s agents in the proceedings such as the right to oppose the proceeding, to attend the hearing, and to present evidence.
\t\t\t\t(5) Notice that, if the petition is granted, the person may be liable for the fees and expenses of the special Medicaid representative as allowed by the court.
\t\t\t(b) Orders of notice of the hearing shall include a copy of the petition and shall issue by first class mail to the:
\t\t\t\t(1) Person, the person’s counsel, if any, the person’s spouse, and the person’s agents whose names and addresses appear on the petition;
\t\t\t\t(2) Proposed special Medicaid representative; and
\t\t\t\t(3) Care facility.
\t\t\t(c) At the hearing on the petition, the care facility shall have the burden of proving by a preponderance of the evidence that the Medicaid application is necessary, that the care facility has demanded that the person or the person’s agents submit and complete a Medicaid application to the department, and that no Medicaid application has been submitted to the department for the person or that, where an application was submitted, the person, the person’s spouse, or the person’s agents have failed to cooperate or diligently prosecute the application. If the care facility meets its burden of proof, the court shall enter an order granting the petition and expressly and specifically memorializing the authority of the special Medicaid representative to request and receive from any entity or individual any and all information about the finances and assets of the person and the person’s spouse, if applicable, required by the department to determine the person’s eligibility for Medicaid. The order granting the petition shall not be stayed pending appeal except where expressly ordered by the court upon good cause shown.
\t\t\t(d) Objections, if any, to the petition shall be filed by the deadline scheduled by the court which shall in any event be no later than 5 days before the hearing date and shall describe with specificity the objection and the grounds for the objection; provided, however, that no such objection shall be sustained unless the objector can show by a preponderance of the evidence that:
\t\t\t\t(1) A full and complete Medicaid application has been submitted to the department by the person or the person’s agents;
\t\t\t\t(2) The person has no outstanding charges owed to the care facility and has the financial capability to pay the estimated costs of care of the person at the care facility for a minimum of 6 months from the date of the hearing; or
\t\t\t\t(3) The person has adequate insurance or other third-party coverage to pay the care facility’s costs of care.
\t\tV.(a) The authority of the special Medicaid representative shall terminate upon motion and order of the court following the final approval or denial by the department of the Medicaid application after a full eligibility determination as to the person including the resolution of all appeals. The special Medicaid representative shall file an annual status report with the court on the anniversary of the appointment of the special Medicaid representative. The court may require a bond from the special Medicaid representative in such sum as it deems appropriate. In the discretion of the court, a bond without sureties may be given.
\t\t\t(b) Any information obtained by the special Medicaid representative shall be used exclusively for the purposes of obtaining Medicaid coverage for the person and shall otherwise remain confidential except as to the authorized personnel of the care facility. The court may enter such orders as it deems appropriate upon proof by a preponderance of the evidence of:
\t\t\t\t(1) A violation of the duty of confidentiality described in the preceding sentence; and
\t\t\t\t(2) Actual damages.
\t\t\t(c) The court, in its discretion, may award the special Medicaid representative reasonable compensation for his or her services, including, but not limited to, expenses, legal fees, and other costs to be paid from the assets of the person in a priority to be determined by the court as allowed by law. Said compensation for services, expenses, legal fees and other costs of the special Medicaid representative may also be paid by agreement with any other interested party.
\t\t\t(d) Nothing contained this chapter shall diminish any other rights of a care facility.
\t2 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t15-0940
\t\t\t\t\t\t\t\t\t\t\tRevised 1/29/16
SB 127-FN- FISCAL NOTE
AN ACT\trelative to special conservatorships for Medicaid.
FISCAL IMPACT:
The Department of Health and Human Services, Judicial Branch, and New Hampshire Association of Counties state this bill, as introduced, may increase state general fund expenditures, as well as county expenditures, by an indeterminable amount in FY 2017 and each year thereafter. There will be no impact on local expenditures, or on state, county, and local revenue.
METHODOLOGY:
The Department of Health and Human Services states this bill allows long-term care or hospital facilities, if they have reason to believe that an individual receiving care is unable to pay and may be eligible for Medicaid, to send a written request to that individual's agents or designated responsible family members to complete and file a Medicaid application within 10 days of the request. In the event a Medicaid application is not completed within 10 days of the request, the care facility may petition the probate court for the appointment of a special conservator for the purpose of applying for Medicaid for that person. The bill further prevents the Department from denying Medicaid applications for failure to timely provide additional information provided the person is acting in good faith. Moreover, the bill allows the Department two options when receiving Medicaid applications under the bill: it must either (a) dispute that the application is complete and provide specifics as to what is missing, or (b) approve the application. The Department is unable to determine whether this bill will have an impact on general fund expenditures. The potential exists for the bill to result in an increase in the number of applications from eligible individuals, which would in turn increase general fund expenditures for the individuals' Medicaid benefits. The Department has no data on which to estimate the number of additional Medicaid-eligible individuals, if any, who may apply as a result of the bill.
The Judicial Branch projects the average cost of processing a conservatorship case in the probate division of the circuit court will be $493.09 in FY 2017 and $528.61 in FY 2018. The Branch notes average case costs are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing cases.
The New Hampshire Association of Counties states the bill will add to counties' administrative burden, as it requires counties to manage the actions and participation of the conservator in cases involving residents in county long-term care facilities. In addition, the bill may result in an indeterminable increase in county expenditures.