CHAPTER 156
SB 311- FINAL VERSION
3/23/00 3851s
20april00.....4186h
2000 SESSION
05/01
SENATE BILL 311
COMMITTEE: Public Institutions, Health and Human Services
This bill clarifies the procedure for the placement of liens and the recovery of certain categories of public assistance provided 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
3/23/00 3851s
20april00.....4186h
00-2683
05/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand
AN ACT relative to the recovery of public assistance.
Be it Enacted by the Senate and House of Representatives in General Court convened:
156:1 Responsibility for Public Medical Assistance. Amend RSA 167:3-b to read as follows:
167:3-b Responsibility for Public Medical Assistance. The provisions of RSA 167:2, 3 and 3-a, do not apply to the administration of medical assistance[, except with respect to the spouse of the individual who needs medical care or services, or the parent of such individual, if said individual is under 21 or is either blind or permanently and totally disabled].
156:2 New Paragraph; Definitions. Amend RSA 167:6 by inserting after paragraph VII the following new paragraph:
VIII. For purposes hereof, the terms "spouse" and "surviving spouse" shall include anyone currently legally married to a recipient, or who was legally married to a recipient at the time of the recipient's death, and shall not include those to whom a legal separation has been granted by a court of competent jurisdiction.
156:3 Recovery for Assistance Furnished. Amend RSA 167:13 to read as follows:
167:13 Recovery for Assistance Furnished.
I. Except as provided in paragraph II, if at any time during the continuance of assistance, the recipient or the husband or wife of the recipient becomes possessed of any property or income in excess of the amount stated in the application, it shall be the duty of the recipient within 10 calendar days to notify the commissioner of the department of health and human services of the receipt or possession of such property or income. On the death of a recipient of old age assistance or aid to the permanently and totally disabled, the total amount of assistance paid under this chapter or RSA 161 shall be allowed as a claim against the estate of such person after payment of the charges in the priority set forth in RSA 554:19. No [claim] lien filed in accordance with RSA 167:14 shall be [imposed] extended to enforce recovery nor shall any sale be forced against the real estate of a recipient of old age assistance or aid to the permanently and totally disabled while it is occupied as a home by a surviving spouse[, or against any personal property of less than $100 in value]. The federal government shall be entitled, as long as required as a condition to federal financial participation, to such proportion of the net amount collected from the estate of a recipient of old age assistance or aid to the permanently and totally disabled as the federal participation bears to the total amount of assistance granted said recipient.
II. Notwithstanding paragraph I, for medical assistance, no resources of the community spouse shall be deemed available to the institutionalized spouse during the continuous period in which an institutionalized spouse is in an institution, and after the month in which an institutionalized spouse is determined to be eligible for medical assistance benefits.
III. The department may waive adjustment or recovery in cases in which:
(a) It is not cost-effective to recover from an individual's estate; or
(b) Recovery would result in an undue hardship as determined in accordance with rules adopted pursuant to RSA 541-A.
156:4 Claims and Liens. RSA 167:14 is repealed and reenacted to read as follows:
I. The estate of every recipient and the estate of a recipient's spouse, if any, owned severally or as joint tenants, shall be liable for all financial old age assistance or aid to the permanently and totally disabled granted to the recipient; provided, however, that the estate of a recipient's spouse shall be liable only for such financial assistance as was granted to the recipient during the time that the recipient and the recipient's spouse were neither legally separated nor divorced. After providing all owners of the real property known to the department with prior notice and an opportunity for a hearing, the commissioner of the department of health and human services shall file with the register of deeds of the county in which the recipient, or the spouse of the recipient, if any, owns real property, notice of the lien. Such notice of lien shall contain the names of the recipient and the recipient's spouse, if any. All such liens shall continue during the lifetime of the recipient and of the spouse of the recipient, if any, and until enforced as provided in this section, unless sooner released by the commissioner of the department of health and human services. The register of deeds shall keep a suitable record of such notices of lien without charging any fee therefore and enter on the record an acknowledgment of satisfaction or release upon written request from the commissioner of the department of health and human services.
II. Subject to RSA 167:16-a, the estate of every recipient shall be liable for all medical assistance granted to the recipient, and the commissioner of the department of health and human services shall file a claim for recovery against the recipient's estate. No notice of lien may be filed against real property with respect to medical assistance except in conformance with RSA 167:16-a.
156:5 Enforcement of Assistance Liens; Restricted to Recipient Assets. Amend RSA 167:16, I-III to read as follows:
I. Assistance liens arising under this chapter or RSA 161 may be enforced by a bill in equity, or, in the case of liens against real estate which have been duly filed under RSA 167:14, by filing a timely and verified notice of lien with the probate court with jurisdiction over the estate of the recipient [or recipient spouse] and mailing a copy of said notice and a verified claim for recovery of assistance payments to the administrator of the estate.
II. The commissioner may enforce the liquidated amount of an assistance lien against real estate by filing a timely and verified notice with the probate court and submitting a timely and verified claim against the estate of the recipient[, or recipient spouse,] which sets forth the dates and amounts of assistance paid. Such claims shall be timely if filed within 6 months from the initial grant of administration for the estate in question.
III. Notwithstanding RSA 556:5 and any other provision of law to the contrary, the administrator of a recipient's estate[, or the estate of a recipient's spouse,] shall be conclusively presumed to have accepted a claim for recovery of assistance which is [the subject of a lien against real estate] subject to the jurisdiction of the probate court unless, within 12 months from the initial grant of administration, the administrator commences an equitable action in the superior court challenging the validity or amount of the commissioner's claim and lien.
156:6 Limitations on Recovery of Assistance. RSA 167:16-a, IV is repealed and reenacted to read as follows:
IV. Notwithstanding any provision of law to the contrary, there shall be no adjustment or recovery of medical assistance correctly paid on behalf of such an individual, except from the estate of an individual who was 55 years of age or older when the individual received such assistance, and then only after the death of the surviving spouse, if any, and only at a time when:
(a) The individual has no surviving child who is under 21 years of age or is blind or permanently and totally disabled.
(b) In the case of a lien on an individual's home under subparagraph I(b):
(1) No sibling of the individual who was residing in the individual's home for a period of at least one year immediately before the date of the individual's admission to the medical institution, nursing facility, or intermediate care facility for the mentally retarded and is lawfully residing in such home on a continuous basis since the date of the individual's admission to the medical institution, nursing facility, or intermediate care facility for the mentally retarded.
(2) No son or daughter of the individual who was residing in the individual's home for a period of at least 2 years immediately before the date of the individual's admission to the medical institution, nursing facility, or intermediate care facility for the mentally retarded and who establishes to the satisfaction of the state that he or she provided care to such individual which permitted such individual to reside at home rather than in an institution and is lawfully residing in such home and has done so on a continuous basis since the date of the individual's admission to the medical institution, nursing facility, or intermediate care facility for the mentally retarded.
156:7 Effective Date. This act shall take effect January 1, 2001.
(Approved: May 23, 2000)
(Effective Date: January 1, 2001)