RSA 151-I:2 · Special Medicaid Representatives

151-I:2 Special Medicaid Representatives. –

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I.

If a person in a care facility has not paid the costs of care as they become due 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:

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(a)

The care facility may send out a written request signed by the duly-authorized representative of the care facility. The request 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. The written request shall inform the person that the care facility reasonably believes the person is eligible for Medicaid and inform the person on how to file a Medicaid application with the department. The written request shall also notify the person that if the person chooses not to file a Medicaid application the facility may petition the court for the appointment of a special Medicaid representative pursuant to this chapter.

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(b)

If the person or one of the person's agents files a Medicaid application, the application shall be in a form sufficient to be accepted to begin processing by the department and Medicaid eligibility shall be determined consistent with RSA 151-E:3 and RSA 167:4. A contemporaneous notice and copy of the application shall be provided by the person to the care facility, the person's spouse, and any of the person's known agents, by certified mail, return receipt requested; provided however that the Medicaid applicant may omit the copy of the Medicaid application in the notice to the care facility.

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(c)

If the person or the person's agents file the Medicaid application, the care facility may also request that they 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. To the extent that the person and the person's agents cooperate and execute such authorizations and the care facility receives such information, the employees of the facility shall have a duty to preserve the confidentiality of the information, except to the extent necessary for the processing of the Medicaid application. The department shall promptly respond to any inquiries by the person, the person's legal agent, or care facility as to the status of the Medicaid application. Notwithstanding any other provision of this chapter, any refusal of the person or the person's agents to execute authorizations in favor of a care facility shall be subject to the right of the facility to petition the court for the appointment of a special Medicaid representative for noncooperation as stated in subparagraph (d).

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(d)

The care facility may petition the court for the appointment of a special Medicaid representative:

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(1)

If the care facility does not, upon the care facility's inquiry, receive confirmation from the department of the filing of a Medicaid application within 5 business days of the care facility's inquiry in accordance with subparagraph (b); or

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(2)

If the care facility does not, upon the care facility's inquiry, receive confirmation from the department within 15 business days of the care facility's inquiry that the Medicaid application has been completed and is waiting for an eligibility determination consistent with RSA 151-E:3 and RSA 167:4.

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(e)

For the purposes of this chapter only, if the otherwise eligible Medicaid applicant or care facility has attempted in good faith to obtain financial and asset information but is being prevented from providing this information because of a third party, then the department shall not deny the Medicaid application for failure to provide this information, if the Medicaid applicant or care facility provides documentation that they have made good faith efforts, but have failed to obtain such information by:

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(1)

Sending 2 written requests to the third party demanding the requested information; and

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(2)

If such requests are unsuccessful, filing a motion to compel or a petition for discovery in a court of competent jurisdiction to order the third party to provide the requested information.

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(f)

In those instances where the Medicaid applicant or an authorized 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.

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(g)

Individuals or entities responding to a request for information from a Medicaid applicant or an authorized 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.

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(h)

When the Medicaid applicant or the authorized care facility believes that the Medicaid application is ready for an eligibility determination and so notifies 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 and eligibility determinations shall be made consistent with RSA 151-E:3 and RSA 167:4.

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II.

(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:

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(1)

The name, address, corporate or agency status of the petitioning care facility, and its connection with or relationship to the person.

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(2)

The name, age, and address of the person.

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(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.

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(4)

The name, address, occupation, and relationship to the person, if any, of the proposed special Medicaid representative.

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(5)

The name and address of counsel, if any, for the person.

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(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 written request 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) or that the person or the person's agents have otherwise failed to cooperate as stated above in subparagraphs I(c) and (d).

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(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.

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III.

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.

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IV.

(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:

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(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.

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(2)

The deadline by which any interested parties shall file an objection to the petition.

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(3)

Information regarding the purpose of the appointment of a special Medicaid representative.

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(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.

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(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.

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(b)

Orders of notice of the hearing shall include a copy of the petition and shall issue by first class mail to the:

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(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;

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(2)

Proposed special Medicaid representative; and

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(3)

Care facility.

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(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 requested 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 consistent with RSA 151-E:3 and RSA 167:4 and authorizing the care facility to have access to the information obtained by the special Medicaid representative. The order granting the petition shall not be stayed pending appeal except where expressly ordered by the court upon good cause shown. The special Medicaid representative shall not be an employee of the care facility provided however that this provision shall not bar the voluntary payment in whole or in part of any fees of the special Medicaid representative by a care facility pursuant to subparagraph V(c).

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(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:

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(1)

A full and complete Medicaid application has been submitted to the department by the person or the person's agents;

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(2)

Since the filing of the petition the person has paid the previously outstanding balance and the person 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;

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(3)

The person has adequate insurance or other third-party coverage to pay the care facility's costs of care;

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(4)

The filing of the Medicaid application is not in the best interest of the person; or

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(5)

The person is not eligible for Medicaid.

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(e)

Unless the person is represented by private counsel or makes a knowing, voluntary, and intelligent waiver, the court shall appoint counsel, the fees and costs for which shall be paid from the estate of the person or, upon a finding that the person is indigent, from the care facility; provided, however, that such fees and costs are reasonable and approved by the court and further provided that in no event shall the fees and costs of such counsel exceed $900 in the aggregate. The said fees and costs may also be paid by the care facility by agreement.

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V.

(a) The special Medicaid representative shall file an annual status report with the court on the anniversary of the appointment of the special Medicaid representative, and shall file a final status report with any motion to terminate the authority of the special Medicaid representative. 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 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.

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(b)

Information obtained pursuant to this chapter shall not be used for any purpose other than obtaining Medicaid coverage for the person and all such information shall otherwise remain confidential except as to the special Medicaid representative. The court may enter such orders as it deems appropriate upon proof by a preponderance of the evidence of a violation of the duty of confidentiality described in this subparagraph.

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(c)

The court, in its discretion, may award the special Medicaid representative reasonable compensation in an amount not to exceed $500 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 as determined by the court as allowed by law; however, no Medicaid funds shall be used to pay for the special Medicaid representative's compensation and no general funds shall be used to pay for the special Medicaid representative's compensation unless the general court appropriates funds specifically for such a purpose. 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.

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(d)

Nothing contained in this chapter shall diminish any other rights of a care facility. Source. 2016, 265:1, eff. Jan. 1, 2017.

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