Certified Final Objection No. 133 of the


Joint Legislative Committee on Administrative Rules



            At its meeting on November 19, 2004, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2004-128 containing rules of the Department of Health and Human Services (Department) relative to Medicaid for Employed Adults with Disabilities (MEAD).


At its meeting on February 4, 2005 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2004-128.  The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register.  The effect of a final objection is stated in RSA 541-A:13, VI:


            After a final objection by the committee to a provision in the rule is filed with the director under subparagraph V(f), the burden of proof shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement.  If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid.  The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.


            The following summarizes the bases for the Committee’s final objection:


He-W 641.03(e)


The Committee objected that He-W 641.03(e) is, pursuant to Committee Rule 402.01(b), contrary to legislative intent by violating a statutory purpose clause.


He-W 641.03 addresses Medicaid for Employed Adults with Disabilities (MEAD).  As the Department testified on February 4, 2005, the MEAD program “provides Medicaid eligibility to disabled individuals whose earnings would ordinarily render them over income for Medicaid.”  The Department also testified that the program was established “so as to remove the disincentive for work that resulted from this paradox.”


            The Committee had entered a preliminary objection on November 19, 2004 based on public testimony that certain provisions of the proposal, including the deletion of the existing He-W 641.03(e), were contrary to legislative intent.  In the objection response dated December 30, 2004, the Department amended the proposal, including re-insertion of He-W 641.03(e) with amendment.



Certified Final Objection No. 133 of the


Joint Legislative Committee on Administrative Rules


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The proposed He-W 641.03(e), as amended from the existing rule, states that:


(e)  Liquid resources, including interest earned by the resource[s], accumulated from earnings by a MEAD-eligible individual beginning on or after the date [that] of the MEAD eligibility was established through the period of MEAD eligibility and kept in a separate account from other liquid resources, [shall be excluded when determining future             eligibility for non-MEAD adult category medical assistance.] for individuals losing MEAD eligibility and seeking another adult category of medical assistance, shall be treated as follows:


(1)  The funds shall be excluded during the first 6 months of receiving non-MEAD adult category medical assistance.


(2)  Starting in the 7th month, any funds remaining in excess of the prescribed adult category medical assistance resource limit month shall be counted as a resource for non-Mead [sic] Adult Category Medical Assistance.


The Department testified that such non-MEAD adult category programs include Aid for the Permanently and Totally Disabled (APTD).  The Department testified that, in its view, “the proposed change is not a fundamental change to the MEAD program, but rather an accommodation in the APTD program which both ensures that affected individuals are able to realize maximum benefit of their MEAD savings while also achieving parity within the adult population of Medicaid recipients.” 


Attorney Michelle Winchester of the Institute for Health, Law & Ethics of the Franklin Pierce Law Center testified that the enabling legislation for the MEAD program was Chapter 67 of the Laws of 2001 (House Bill 350), the state’s counterpart to the federal Ticket to Work and Work Incentives Improvement Act of 1999 (Public Law 106-170).  Chapter 67 amended RSA 167 relative to persons with disabilities participating in the work incentive program.


The purpose of Chapter 67 is specified in Section 1.  In particular, the Committee noted the findings of the legislature in 2001, 67:1, III and IV, that:


III.  Fear of loss of necessary long-term supports prevents many individuals with disabilities from working according to their full capacity, keeping them in poverty and dependent upon cash assistance programs.


IV.  The work incentive program established by this act will ensure the availability of long-term supports to workers with disabilities who are medically eligible for medicaid, enabling them to maximize their potential.



Certified Final Objection No. 133 of the


Joint Legislative Committee on Administrative Rules


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Attorney Winchester testified that the existing rule He-W 641.03(e) excludes resources, accumulated and allowed under MEAD, from future Medicaid eligibility determinations for non-MEAD programs, consistent with the “established public policy to promote self-sufficiency and reduce dependence on cash assistance programs.”  In her view, the Department was proposing “to begin reversing that policy” and that the amended rule was “an unqualified elimination of that resource exclusion, despite the fact that people with disabilities could be in and out of employment for many reasons, including health and age.”


            In addition, Attorney Winchester testified that Chapter 67 “called for ‘enabling them to maximize their employment potential’ and did not require that the individual be employed continuously over time.”  Attorney Winchester concluded that “[f]or health reasons alone, many will be in and out of regular employment and may need to fall back on basic Medicaid ‘non-MEAD’ eligibility,” and that, to be consistent with the purpose clause, persons should “be able to use…earned savings, for as long as they can, to be self-sufficient and not be forced to spend the resource down completely to become Medicaid-eligible again.”  The proposed amendment in her view “forces people into poverty with the goal of creating parity in poverty.”


            Based on the testimony of Michelle Winchester, the Committee concluded that He-W 641.03(e) as amended was contrary to legislative intent by violating the statutory purpose of the enabling legislation in Chapter 67 as stated in 2001, 67:1, III and IV.