SB 127-FN - AS INTRODUCED
SENATE BILL 127-FN
AN ACT relative to special conservatorships for Medicaid.
SPONSORS: Sen. Forrester, Dist 2; Sen. Carson, Dist 14; Sen. Reagan, Dist 17; Sen. Little, Dist 8; Sen. Hosmer, Dist 7; Sen. Lasky, Dist 13; Rep. Hagan, Rock 4; Rep. Abrami, Rock 19; Rep. Chandler, Carr 1; Rep. Sherman, Rock 24; Rep. Ladd, Graf 4
COMMITTEE: Health and Human Services
This bill establishes special conservatorships for Medicaid. Under this bill, special conservators are appointed to assist persons in long-term care facilities or hospitals fill out applications required by the department of health and human services.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fifteen
AN ACT relative to special conservatorships for Medicaid.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Paragraph; Guardians and Conservators; Definition Added. Amend RSA 464-A:2 by inserting after paragraph II the following new paragraph:
II-a. “Care facility” means a long-term care facility or hospital licensed pursuant to RSA 151.
2 New Paragraph; Guardians and Conservators; Definition Added. Amend RSA 464-A:2 by inserting after paragraph XIV-a the following new paragraph:
XIV-aa. “Person” means the patient or resident of a long-term care facility or a hospital from whom a completed Medicaid application is sought or requested or for whom a special conservator is appointed for the purpose of submitting a Medicaid application.
3 Guardians and Conservators; Definition Added. Amend RSA 464-A:2, XV-a to read as follows:
XV-a. “Special conservator” 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.
XV-b. “Volunteer guardian” means a competent person who provides guardianship services to no more than 2 wards at the same time and who is not related to the ward by blood, adoption, marriage, or civil union. The guardian may receive reimbursement of expenses and a reasonable stipend with court approval.
4 New Section; Guardians and Conservators; Special Conservatorships for Medicaid. Amend RSA 464-A by inserting after section 47 the following new section:
464-A:48 Special Conservatorships for Medicaid.
I. If a person in a care facility has not demonstrated to the satisfaction of the care facility an ability to pay the costs of care through private pay, Medicare, private health or long-term care insurance, or the Affordable Care Act, and the care facility in good faith believes that the person will be unable to pay and that the person may be eligible for Medicaid:
(a) The care facility may send out a written request signed by the licensed administrator of a long-term care facility or a person of similar authority at a hospital. The request shall be sent to the person and any of the person’s known agents including without limitation guardians, conservators, holders of powers of attorney, or any designated responsible family members.
(b) The person and any of the person’s agents shall be required to complete and file a Medicaid application within 10 business days of the request. The application shall be in a form sufficient to be accepted by the department of health and human services, and a contemporaneous notice and copy of the application shall be provided to the care facility.
(c) If the person or the person’s agents comply and submit the Medicaid application within 10 business days of the request, the person and any agents shall then cooperate with the care facility in executing authorizations in favor of the care facility and otherwise in obtaining any additional financial and asset information required by the department to complete and process the Medicaid application such that the application 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 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.
(d) If the care facility does not receive confirmation of the filing of a Medicaid application within 10 days of the request, then the care facility may request the appointment of a special conservator.
(e) If the person or agent thereof is attempting in good faith to obtain the financial and asset information required by the department to process the application, the department shall not deny the application for failure to timely comply with its demands for additional information.
(f) In those instances where the Medicaid applicant seeks financial or asset information from an individual or entity, the individual or entity shall have 10 business days from the posting of a letter or electronic communication that includes a valid authorization for the release of information to respond and produce the requested information 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 to the person or the person’s agent why more time is required or why it should not have to produce some or all of the information.
(g) Individuals or entities responding to a request for information from a Medicaid applicant 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 the allotted time period, then it waives any right to reimbursement.
(h) When the Medicaid applicant or the care facility believe that the Medicaid application is complete and files it with the department, then the department shall either dispute that the application is complete and state with specificity the information that still needs to be provided, or else approve the application within the required period.
II.(a) When a person or a person’s agent fails to cooperate in the Medicaid application process as described in paragraph I to provide for payment for the costs of care incurred for the person’s stay at a care facility, the care facility may petition the probate court for the appointment of a special conservator for the limited purpose of applying for Medicaid for the person. The petition for a special conservator shall provide the information required by RSA 464-A:4, II(a), (b), (c), (d), (g) and (h); provided, that for the purpose of this section the term “ward” in the referenced sections of RSA 464-A:4 shall mean “person” and the term “guardian” shall mean “special conservator.” The special petition shall also include the names and addresses of any agents under any power of attorney over the person or the person’s finances and assets, as they are known to the care facility.
(b) The care facility shall file a statement with the special petition containing facts demonstrating the need for the appointment which shall include an affidavit of the licensed administrator of the long-term care facility or a person of similar authority at a hospital demonstrating the basis for its belief that a Medicaid application is necessary, and that demand therefor has been provided to the person or any agents of the person, and that neither the person nor the person’s agents have completed and submitted to the department a Medicaid application.
III. A special conservator shall have the authority to demand 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. Any individual or entity receiving a request from such special conservator shall promptly comply with the request for information or face sanctions for contempt.
IV.(a) Upon filing of the special petition, the court shall issue orders of notice to the person and any of the person’s known agents which shall contain:
(1) The date, time, and place set for the hearing on the special petition, which hearing shall take place no later than 20 days from the filing of the special petition.
(2) The deadline by which any interested parties shall file an objection to the special petition.
(3) Information regarding the purpose of the appointment of a special conservator.
(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.
(b) Orders of notice of the hearing shall include a copy of the special petition and shall issue by first class mail not less than 10 days before the date set for the hearing, to the:
(1) Person, the person’s counsel, if any, and the person’s agents whose names and addresses appear on the special petition.
(2) Proposed special conservator.
(3) Care facility.
(c) At the hearing on the special 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 complete and submit 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 or the person’s agents have failed to diligently prosecute the application. If the care facility meets its burden of proof, the court shall immediately enter an order granting the special petition and expressly and specifically memorializing the authority of the special conservator to demand and receive any and all information about the finances and assets of the person from any entity or individual or face sanctions for contempt of court. The order granting the special petition shall not be stayed pending appeal except where expressly ordered by the court upon good cause shown.
(d) Objections, if any, to the special petition shall be filed no later than 10 days before the hearing date and shall describe with specificity the objection and the grounds therefor; provided, however, that no such objection shall be sustained in the absence of proof by clear and convincing evidence that a full and complete Medicaid application has been submitted to the department by the person or the person’s agents, or that 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 that the person has adequate insurance coverage to cover the costs of care. Any objection to a special petition based upon a request for more time to complete a Medicaid application shall be per se insufficient and rejected as a matter of law.
V.(a) A special conservatorship shall terminate upon order of the court or the final approval or denial by the department of the Medicaid application following a full eligibility determination as to the person including the resolution of all appeals.
(b) Any information obtained by the special conservator shall be used exclusively for the purposes of obtaining Medicaid coverage for the person and shall otherwise remain confidential except as to the limited personnel of the care facility.
(c) The fees and costs of the special conservator shall be paid out of the estate pursuant to RSA 464-A:23 or may be paid by agreement with any other interested party; provided that for the purpose of this section the term “ward” in RSA 464-A:23 shall mean “person”, the term “guardian” shall mean “special conservator”, and the term “guardianship” shall mean “conservatorship.”
5 Effective Date. This act shall take effect January 1, 2016.
SB 127-FN - FISCAL NOTE
AN ACT relative to special conservatorships for Medicaid.
The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill, as introduced, as it is awaiting information from the Department of Health and Human Services and New Hampshire Association of Counties, who were contacted on 01/02/15. When completed, the fiscal note will be forwarded to the Senate Clerk's Office.