In what appears to be a first in the nation, the New Hampshire legislature has enacted a new law that gives nursing homes additional legal rights to seek payment for the cost of care. The legislation, which became law on July 2, 2013, allows nursing homes to sue anyone who received a fraudulent transfer from a nursing home resident, and also makes the resident's fiduciaries liable for the cost of care under certain circumstances.
Under the new law, if a nursing home resident transfers assets and that transfer leads to a Medicaid disqualification, the nursing home can sue the person who received the transfer for the nursing home resident's cost of care (up to the amount transferred). The transferee will be liable at the Medicaid-pay rate, not the private rate. The person sued under this provision can challenge whether the transfer should have been disqualifying.
In addition, the nursing home may sue anyone who has control of the resident's assets and has the authority to file a Medicaid application on behalf of the resident and is negligent in filing the application. This provision applies to the resident's fiduciaries, which could be someone acting under a durable power of attorney, attorney-in-fact, legal guardian, trustee, or representative payee. The fiduciary would be responsible for the resident's cost of care for the period the resident was not covered by Medicaid. A resident's fiduciary may also be liable if he or she refuses to pay the resident's liability amount.
New Hampshire governor Maggie Hassan allowed the bill to become law without her signature because she was concerned that the bill needs additional work. According to the governor, "the bill's policy is sound, but technical improvements are necessary to ensure no one is inappropriately charged with costs of care." She has encouraged the legislature to continue making improvements to the law.
As ElderLawAnswers reported in a link in our September 2013 Monthly, earlier in the year New Hampshire had repealed its filial support law.
To read the new statute, click here.
For an articles/blog posts discussing the law, click here, here and here.
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