NH Legislature Creates Special Medicaid Representative Designation

Long-term care facilities frequently struggle to obtain payment for their services because most residents exhaust their assets during long, expensive stays.  Although these residents are usually eligible to receive Medicaid benefits when their money runs out, they often neglect to file or pursue Medicaid applications.  Until recently, NH facilities were forced to seek appointment of a guardian or conservator who could pursue Medicaid benefits on the resident’s behalf; a difficult endeavor given the need to prove incapacity beyond a reasonable doubt.  However, in the 2015 legislative session, the NH Legislature enacted RSA 151-I to eliminate the need for facilities to pursue guardianship or conservatorship.

RSA 151-I establishes a new procedure through which a nursing home, assisted living facility, hospital or rehabilitation facility may petition the Circuit Court-Probate Division to appoint a special Medicaid representative (“SMR”)—an individual appointed to collect the information necessary to complete and file a Medicaid application on the resident or patient’s behalf.  This post focuses on long-term care facilities, but the process is the same for other eligible facilities.

The SMR procedure is simple.  First, the facility must send a written notice to the resident, the resident’s spouse, and any known agent stating that the facility reasonably believes the resident is eligible for Medicaid.  This written notice must instruct the resident on how to file a Medicaid application, and notify the resident that if they do not promptly file a Medicaid application the facility may petition the court for appointment of an SMR.  Second, if the resident does not file a Medicaid application, or the resident fails to cooperate in the Medicaid application process, the facility may petition the Probate Division for appointment of an SMR.  The SMR cannot be an employee of the facility; the statute is silent on who may serve in this role.

Third, within 10 days of receiving the application, the court must issue an order scheduling a hearing to occur within 40 days.  Fourth, at the hearing, the facility must prove by a preponderance of the evidence that: (a) the Medicaid application is necessary; (b) that the facility has requested that the resident submit a Medicaid application; and (c) that no application has been submitted or that the resident has failed to cooperate.  Fifth, if the facility carries its burden, the court shall appoint an SMR who will have the power to request and receive the necessary financial information and documentation (from individuals, financial institutions, and government entities), and then file a Medicaid application on the resident’s behalf.

The court may award the SMR up to $500 per year to be paid from the assets of the resident to cover expenses, legal fees, and costs.  The SMR must file annual status reports with the court.  The SMR must also file a final summary report when the Medicaid application has been approved or denied along with a motion to terminate SMR status.  The authority of the SMR will terminate upon an order of the court.

RSA 151-I takes effect on January 1, 2017, so eligible health care facilities should adopt policies and draft notices to ensure compliance with this new law.

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