Thursday, November 7, 2013

Fiduciaries Liable for Negligent Failure to File Medicaid LTC Applications in New Hampshire



Earlier this year New Hampshire repealed its filial responsibility law.

It has now replaced that law with one that makes agents under power of attorney and other fiduciaries liable for long-term care facility costs if they negligently fail to file a Medicaid application.  RSA 151-E:19 provides, in part:

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.

The New Hampshire law, which became effective July 2, 2013, also makes transferees liable to the LTC facility at the facility’s Medicaid rate when an asset transfer results in a Medicaid asset transfer disqualification. It provides:

(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).

The new law is available at: http://www.nhliberty.org/bills/view/2013/SB138

Here is a link to an article by a New Hampshire attorney about the law: http://dtclawyers.com/resource-article/new-potential-liability-for-fiduciaries/

Thanks to ElderLawAnswers for alerting me to this new law. 

Further Reading:

New Hampshire limits responsibility of children for parents’ care costs

No comments: